Court Of Appeal Summaries (June 14 ' 18)

• Published date: 23 June 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Wealth Management, Insurance, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Charges, Mortgages, Indemnities, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Wealth & Asset Management, Family Law, Insurance Laws and Products, Court Procedure, Trials & Appeals & Compensation, Advertising, Marketing & Branding, 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 June 14, 2021.

In Kelava v. Spadacini, the Court found that a Deputy Judge of the Small Claims Court has the jurisdiction to make a representation order relying on Rule 12 of the ordinary Rules of Civil Procedure by analogy. The overriding consideration in Small Claims Court matters is access to justice.

In Loan Away Inc. v. Facebook Canada Ltd., the Court enforced Facebook's forum selection clause requiring a lender who advertised and made loans through Facebook to sue in California.

In Johnson v Ontario, the dispute was whether a party could include an affidavit from its lawyer in their Appeal Book and Compendium ("ABC") that spoke to the appellant's request to extend the time to opt out of a class action. The Court permitted the filing of the affidavit, indicating that it was not its practice to consider, in advance of the hearing of an appeal, whether any specific document included in an ABC was relevant or not. The Court lamented the fact that this motion was characteristic of far too many civil motions brought that take up precious court time and could have been avoided if counsel acted reasonably.

Other topics covered this week included insurance coverage for water damage under a homeowners' policy, appeals under s. 193 of the BIA, security for costs of an appeal in the mortgage enforcement context, the oppression remedy, the interpretation of a real estate commission agreement and vexatious litigants in the family law context and judicial immunity context.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Tataryn v. Axa Insurance Canada, 2021 ONCA 413

Keywords: Contracts, Interpretation, Insurance, Homeowners' Policy, Coverage, Exclusions, Water Damage, Civil Procedure, Summary Judgment, Wilson v. INA Insurance Co. of Canada (1993), 80 B.C.L.R. (2d) 361 (C.A.), Dodge v. York Fire Insurance Co., 1911 CarswellOnt 41 (C.A.), Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

Ting (Re), 2021 ONCA 425

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, s. 193, 270 and s. 272(1)(b), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6 and 6(1), Winding-up Act, R.S.C., 1985, c. W-11, s. 103, Rules of Civil Procedure, Rule 14.05(3)(d), Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2012 ONCA 569, Wallace (Re), 2016 ONCA 958, Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 202, 2003945 Alberta Ltd. v. 1951484 Ontario Inc., 2018 ABCA 48, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Rusinek & Associates Inc. v. Arachchilage, 2021 ONCA 112, RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, Elias v. Hutchison, 1981 ABCA 31, Re Ravelston Corp. (2005), 24 C.B.R. (5th) 256, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Canada Deposit Insurance Corp. v. Commonwealth Trust Co. (1993), 35 C.B.R. (3d) 208, Simonelli v. Mackin, 2003 ABCA 47

Sub-Prime Mortgage Corporation v. Kaweesa, 2021 ONCA 431

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Appeals, Security for Costs, Stay of Enforcement, Rules of Civil Procedure, Rules 50.10(1) and 61.06(1), Heidari v. Naghshbandi, 2020 ONCA 757

Murray v. Pier 21 Asset Management Inc., 2021 ONCA 424

Keywords: Corporations, Oppression, Contracts, Share Purchase Agreements, Remedies, Equitable Damages, Civil Procedure, Fresh Evidence, Costs, Canada Business Corporations Act, R.S.C. 1985, c. C-44, Palmer v. The Queen, [1980] 1 S.C.R. 759, Wilson v. Alharayeri, 2017 SCC 39, Ford Motor Co. of Canada, Ltd. v. Ontario Municipal Employees Retirement Board (2006), 263 D.L.R. (4th) 450 (Ont. C.A.), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Eastern Power Limited v. Ontario Electricity Financial Corporation, 2012 ONCA 366

Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Commission Agreement, Conditional Offer, Commercial Reasonableness, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60

Kelava v. Spadacini, 2021 ONCA 428

Keywords: Civil Procedure, Small Claims Court, Jurisdiction, Representation Orders, Small Claims Court Rules, O. Reg. 258/98, Rule 1.03(2), Rules of Civil Procedure, R. 12.07, Van de Vrande v. Butkowski, 2010 ONCA 230, Riddel v. Apple Canada Inc., 2017 ONCA 590, Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

Hart v. Fullarton, 2021 ONCA 438

Keywords: Family Law, Spousal Support, Civil Procedure, Appeals, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 6(1)(b), 140(1), section 140(3), 140(4)(e), Family Law Act, Part III, Rules of Civil Procedure, Rule 1.03, Varma v. Rozenberg, [1998] O.J. No. 4183 (C.A.), Kalaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.), Vermette v. Nassr, 2016 ONCA 658, Chavali v. The Law Society of Upper Canada, 2007 ONCA 482

Johnson v. Ontario , 2021 ONCA 443

Keywords: Civil Procedure, Class Proceedings, Appeals, Appeal Books and Compendia, Rules of Civil Procedure, Rule 61.10(1)(i), R. v. Smith, (2001), 154 O.A.C. 51, (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 156

Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432

Keywords: Contracts, Commercial, Forum Selection Clauses, Enforceability, Civil Procedure, Jurisdiction, Stay of Proceedings, Strong Cause Test, Romanko v. Aviva Canada Inc., 2018 ONCA 663, Estrada v. Estrada, 2016 ONCA 697, Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, Douez v. Facebook, Inc., 2017 SCC 33, GreCon Dimter inc. v. J.R. Normand Inc., 2005 SCC 46

Short Civil Decisions

Berman v. Berman, 2021 ONCA 439

Keywords: Family Law, Evidence

Gorman v. Sadja, 2021 ONCA 430

Keywords: Family Law, Contracts, Evidence

Ahmed v. Ontario (Attorney General), 2021 ONCA 427

Keywords: Civil Procedure, Striking Pleadings, Frivolous, Vexatious, Abuse of Process, Judicial Immunity, Justices of the Peace Act, R.S.O. 1990, c. J.4, s. 20, Rules of Civil Procedure, Rules 2.1.01, 2.1, 2.1.01, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, National Bank of Canada v. Guibord, 2020 ONCA 677, Rallis v. Myers, 2019 ONCA 437, Morier and Boily v. Rivard, [1985] 2 S.C.R. 716, Ernst v. Alberta Energy Regulator, 2017 SCC 1, Fitzgerald v. Reaume, 2021 ONCA 330, Beazley v. Canada (Attorney General), 2021 ONCA 117

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446

Keywords: Provincial Offences, Civil Procedure, Appeals, Leave to Appeal, Fresh Evidence, Striking Documents, Rules of Civil Procedure, Rule 25.11, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 135 D.L.R. (4th) 471 (Ont. C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.)

2650971 Ontario Inc. v. Shameti, 2021 ONCA 433

Keywords: Civil Procedure, Appeals, Extension of Time, Partition Act, R.S.O. 1990, c. P.4, Rules of Civil Procedure, Rules 63.01(1), 66, Issasi v. Rosenzweig, 2011 ONCA 112, 277 O.A.C. 391, Duca Community Credit Union Limited. V. Giovannoli (2001), 142 O.A.C. 146 (C.A.)

CIVIL DECISIONS

Tataryn v. Axa Insurance Canada, 2021 ONCA 413

[Roberts, Miller and Thorburn JJ.A.]

Counsel:

A.L. Barber, for the appellant
B.C. Elkin, for the respondents, S. T. and S.G. Tataryn Professional Corporation
P. Santini, for the respondents, I. H. and Cohen & Lord Insurance Brokers Limited
K. Dow, for the respondent, C. M., making no submissions

Keywords: Contracts, Interpretation, Insurance, Homeowners' Policy, Coverage, Exclusions, Water Damage, Civil Procedure, Summary Judgment, Wilson v. INA Insurance Co. of Canada (1993), 80 B.C.L.R. (2d) 361 (C.A.), Dodge v. York Fire Insurance Co., 1911 CarswellOnt 41 (C.A.), Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

facts:

The Respondent's property was insured under a Homeowners Comprehensive policy with the appellant ("the Policy"). The Respondent purchased an additional Business Interruption Endorsement, as the property was also the Respondent's place of business. The Respondent renovated part of the property, and during these renovations two instances of water damage occurred.

The Respondent sought coverage under the Policy. The Appellant made some payments for the first loss but denied the second. The Appellant cited the exclusion clause of the Policy that denied payment for damages for property "under construction" as justification for denying coverage of the second claim.

The Respondent commenced an action against the Appellant. The Respondent brought a motion to declare that the "under construction" exclusion clause did not apply. The motion judge granted the motion. The Appellant now appeals the motion judge's ruling.

issues:

(1) Did the motion judge err in his interpretation of the terms "under construction" because he failed to construe them in the entire context of the Policy and the limited risk covered under a homeowner's policy of insurance?
(2) Did the motion judge fail to consider the entirety of the evidence and focus too narrowly on the state of renovations following the second loss?
(3) What is the proper definition of "under construction" in the context of insurance?

holding:

Appeal dismissed.

reasoning:

(1) No.
The motion judge properly instructed himself on the applicable rules of contractual interpretation, including that he was required to "give effect to the clear language of the policy, reading it as a whole". He considered the plain meaning of the term "under construction", which he found to be unambiguous, and applied it to the entirety of the...