Court Of Appeal Summaries (June 28-30)

• Published date: 02 July 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Real Estate and Construction, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Construction & Planning, Securities
• 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 short week of June 28 to 30, 2021.

Topics covered this week included security for costs in an appeal from a Mareva injunction and follow up contempt order that granted judgment for the full amount sought by the plaintiff, a custody and access, and the enforcement of a limitation of liability clause in a contract with a security alarm provider, the denial of leave to appeal in the Carillion insolvency and the quashing of an appeal by a lawyer of a party on the basis of lack of standing.

If there are any decisions released on Friday, July 2, our summaries of those decisions will be included with our posting of summaries for the week of July 5.

Wishing everyone an enjoyable Canada Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Braech of Fiduciary Duty, Breach of Contract, Civil Procedure, Orders, Mareva Injunctions, Enforcement, Contempt, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rules 60.18, 61.06(1), 61.06(1)(c), 63.01(1), 63.03(3), 63.01(5), 63.02(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Heidari v. Naghshbandi, 2020 ONCA 757, York University v. Markicevic, 2017 ONCA 651, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.), Zafar v. Saiyid, 2017 ONCA 919

M.P.M. v. A.L.M., 2021 ONCA 465

Keywords: Family Law, Custody and Access, Best Interests of Child, Appeals, Orders, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 28, s. 30, 76(2) and 76(3), Divorce Act, R.S.C., 1985, c. 3, ss. 16(1) and (6), Salehi v. Tawoosi, 2016 ONCA 986, Decaen v. Decaen, 2013 ONCA 218, Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, H.E. v. M.M., 2015 ONCA 813, leave to appeal refused, [2016] S.C.C.A. No. 63, C.S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764, Leelaratna v. Leelaratna, 2018 ONSC 5983, M.M.B (V.) v. C.M.V., 2017 ONSC 3991, Foley v. Foley, 2016 ONSC 4925

Deswal v. ADT LLC (ADT Security Services), 2021 ONCA 475

Keywords: Contracts, Interpretation, Torts, Negligence, Limitation of Liability, Sophisticated Parties, Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 34 O.R. (3d) 1 (C.A.), Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Suhaag Jewellers Ltd. v. Alarm Factory Inc. (AFC Advance Integration), 2016 ONCA 33

Carillion Canada Holdings Inc. (Re), 2021 ONCA 468

Keywords: Bankruptcy and Insolvency, Construction Law, Statutory Trusts, Remedies, Tracing, Civil Procedure, Leave to Appeal, Fresh Evidence, Companies' Creditors Arrangement Act, R.S.C., 1985, c. C-36, Construction Lien Act, R.S.O. 1990, c. C.30, s. 8, Crystallex International Corporation (Re), 2021 ONCA 87, B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805

Scetto v. Scetto, 2021 ONCA 485

Keywords: Contracts, Solicitor and Client, Solicitors' Lien, Civil Procedure, Appeals, Standing, Solicitors Act, R.S.O. 1990, c. S.15, s. 34(1), Rules of Civil Procedure, Rule 61.04(1), Weenen v. Biadi, 2018 ONCA 288, Schmidt v. Toronto Dominion Bank, 24 O.R. (3d) 1 (C.A.)

Short Civil Decisions

Weinstein v. Toronto Standard Condominium Corporation No. 1466, 2021 ONCA 470

Keywords: Civil Procedure, Arbitration, Appeals, Jurisdiction, Arbitration Act, 1991, SO 1991, c 17, s 49

Di Franco v. Bueckert, 2021 ONCA 476

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAAP, Evidence, Credibility, Summary Judgement, Courts of Justice Act, R.S.O. 1990, c. C.43, Section 137.1, 704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22

CIVIL DECISIONS

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474

[Zarnett J.A. (Motions Judge)]

COUNSEL:

Radnoff and J. Suttner, for the Respondents, moving parties in M52469 and responding parties in M52474
Necpal and J. Nasseri, for the Appellants, responding parties in M52469 and moving parties in M52474

Keywords: Torts, Fraud, Fraudulent Misrepresentation, Braech of Fiduciary Duty, Breach of Contract, Civil Procedure, Orders, Mareva Injunctions, Enforcement, Contempt, Appeals, Security for Costs, Stay Pending Appeal, Rules of Civil Procedure, Rules 60.18, 61.06(1), 61.06(1)(c), 63.01(1), 63.03(3), 63.01(5), 63.02(1), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, Heidari v. Naghshbandi, 2020 ONCA 757, York University v. Markicevic, 2017 ONCA 651, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.), Zafar v. Saiyid, 2017 ONCA 919

FACTS:

The Respondents had commenced an action against the Appellants seeking substantial damages. The action arose out of the Respondents' advance of $9 million to the Appellants for the purchase of certain properties. The Respondents alleged that the investment was not used for the reasons it was advanced and was misappropriated.

On April 23, 2020, the motion judge granted a Mareva injunction and related orders against the Appellants, subject to limited exceptions. On May 19, 2020, the motion judge declared that the Appellants had materially breached the orders and gave them a further opportunity to comply. On June 1, 2020, the motion judge suspended the exceptions to the Mareva injunction due to the appellants' continuing non-compliance.

A contempt hearing was held. The motion judge found the Appellants in contempt for breach of the Mareva injunction. On November 5, 2020, the motion judge held a sentencing hearing. On January 21, 2021, he released reasons finding that the Appellants had not purged their contempt and remained in breach of his orders. He gave judgment with a number of provisions. As sanction for contempt, the Appellants were ordered to pay $8,794,606.09, to the Respondents, which was their investment less amounts recovered. The Appellants were ordered to attend a judgment debtor examination. Costs amounting to $193,971.08 were also awarded to the Respondents. The Appellant refused to attend the judgment debtor examination.

Pending the hearing of the appeal, the Respondents move for security for costs of the appeal and the costs in the court below. The Appellants sought a declaration that the order to attend the examination was automatically stayed as a result of the outstanding appeal from the money judgment, or in the alternative, an order that it be stayed pending the hearing of the appeal.

ISSUES:

(1) Should security for costs be awarded to the Respondents for the cost of the appeal and for the cost award set out by the motion judge?
(2) Was the order of the motion judge to attend the judgment debtor examination automatically stayed upon appeal, and, if not, should the order be stayed?

HOLDING:

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