Court Of Appeal Summaries (June 21 ' 25)

• Published date: 29 June 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Consumer Protection, Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Contract of Employment, Unfair/ Wrongful Dismissal, Family Law, Court Procedure, Education, Trials & Appeals & Compensation, Professional Negligence, White Collar Crime, Anti-Corruption & Fraud, Civil Law, Wills/ Intestacy/ Estate Planning
• 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 week of June 21, 2021.

In Manastersky v. Royal Bank of Canada, the Court dealt with a wrongful dismissal appeal on damages that was remanded by the Supreme Court of Canada with the directive of applying the recent decision of Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26. The Court affirmed its original decision.

In Moore v. 7595611 Canada Corp., the Court refused to set aside the damage awards the jury made at trial. Of note, the Court refused to reduce an award for loss of care, guidance and companionship, despite it exceeding the "upper limit" prescribed in To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 (Ont. C.A.). The Court held that since the award did not "shock the conscience of the court" it should not be reduced.

In Krebs v. Cote, the Court refused to extend to cohabitation agreements the rule that provides that a separation agreement becomes void upon reconciliation of the parties.

In Bayford v Boese, the Court found that the trial judge erred in finding that the respondent had discharged her burden to prove the formal validity of the will due to a misapprehension of the content and significance of expert evidence.

Other topics covered this week included subrogation rights of an insurer to SABs, the admission of fresh expert evidence in a medmal matter resulting in the setting aside of summary judgment dismissing the claim, breach of contract in respect of consulting services, the refusal of leave to appeal in the Laurentian University CCAA proceeding, contempt in the custody and access context, the negligence of a landlord in respect of the death of a tenant in a house fire, mitigation in respect of a claim for breach of an APS of land and extension of time to perfect an appeal in the family law context.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Burns v. Brown, 2021 ONCA 450

Keywords: Family Law, Civil Procedure, Appeals, Perfection of Appeal, Extension of Time, Rules of Civil Procedure, Rule 61.05(5), Issasi v. Rosenzweig, 2011 ONCA 112

El-Khodr v. Northbridge Commercial Insurance Company , 2021 ONCA 440

Keywords: Torts, Negligence, MVA, Statutory Accident Benefits, Subrogation, Assignment, Contracts, Interpretation, Minutes of Settlement, Insurance Act, R.S.O. 1990, c. I.8, s. 267.8, Statutory Accident Benefits Schedule, O. Reg. 34/10, El-Khodr v. Lacki 2017 ONCA 716, 139 O.R. (3d) 659, leave to appeal refused, [2017] S.C.C.A. No. 461, El-Khodr v. Lackie, 2015 ONSC 5244, 79 C.P.C. (7th) 356, Carroll v. McEwen, 2018 ONCA 902, Cadieux v. Cloutier, 2018 ONCA 903, leave to appeal to refused, [2019] S.C.C.A. No. 63, Gilbert v. South, 2014 ONSC 3485, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Environs Wholesale Nursery LTD. v. Environs Landscape Contracting LTD., 2019 ONCA 547, 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235, Angus v. Port Hope (Municipality), 2017 ONCA 566, leave to appeal refused, [2017] S.C.C.A. No. 382

Bayford v. Boese , 2021 ONCA 442

Keywords: Wills and Estates, Wills, Formal Validity, Civil Procedure, Expert Evidence, Fresh EvidenceSuccession Law Reform Act, R.S.O. 1990, c. S.26, s. 4(1), Housen v. Nikolaisen, 2002 SCC 33, R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), Waxman v. Waxman, 2004 CanLII 39040, leave to appeal refused, [2004] S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Vout v. Hay, [1995] 2 S.C.R. 876, Palmer v. The Queen, [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller (1994), 111 D.L.R. (4th) 19 (Ont. C.A.)

Pichelli v. Kegalj , 2021 ONCA 445

Keywords: Torts, Fraud, Deceit, Misrepresentation, Breach of Trust, Unjust Enrichment, Civil Procedure, Summary Judgment, Fresh Evidence, Rules of Civil Procedure, Rules 20.04(2.1), 20.04(2.2), 21, 25, 25.06(8), Hryniak v. Mauldin, 2014 SCC 7, Trotter Estate, 2014 ONCA 841, Royal Bank of Canada v 164397 Ontario Inc, 2021 ONCA 98, Sengmueller v. Sengmueller, 1994 111 D.L.R. (4th) 19 (Ont. C.A.)

Johnson v. Rajanna, 2021 ONCA 453

Keywords: Torts, Negligence, Medmal, Dentists, Civil Procedure, Summary Judgment, Expert Evidence, Standard of Care, Adjournments, Fresh Evidence, Experts, Expert Report, Rules of Civil Procedure, Rule 53.03(2.1), R. v. Palmer, [1980] 1 S.C.R. 759

Laurentian University of Sudbury (Re), 2021 ONCA 448

Keywords: Bankruptcy and Insolvency, Restructuring, Notice of Disclaimer, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-3, Laurentian University of Sudbury v. University of Sudbury, 2021 ONSC 3392, Laurentian University of Sudbury (Re), 2021 ONCA 199, 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10, Edgewater Casino Inc. (Re), 2009 BCCA 40, Nortel Networks Corp. (Re), 2016 ONCA 332

Manastersky v. Royal Bank of Canada, 2021 ONCA 458

Keywords: Contracts, Employment, Wrongful Dismissal, Reasonable Notice, Damages, Supreme Court Act, R.S.C. 1985, c. S-26, s. 43(1.1), Manastersky v. Royal Bank of Canada, 2019 ONCA 609, Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Lin v. Ontario Teachers' Pension Plan, 2016 ONCA 619, Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.)

Krebs v. Cote , 2021 ONCA 467

Keywords: Family law, Contracts, Interpretation, Cohabitation Agreements, Separation, Reconciliation, Civil Procedure, Summary Judgment, Determination of Question of Law, Family Law Act, RSO 1990, c. F3, ss 52 to54, Family Law Rules, Rule 16(12)(a), Montague Lush and Walter Hussey Griffith, Law of Husband and Wife within the Jurisdiction of the King's Bench & Chancery Divisions, 3rd ed. (London: Stevens and Sons, Limited, 1910), Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, Ernikos v. Ernikos, 2017 ONCA 347, Sydor v. Sydor (2003), 178 O.A.C. 155 (C.A.), Bailey v. Bailey (1982), 37 O.R. (2d) 117 (C.A), Bebenek v. Bebenek (1979), 24 O.R. (2d) 385 (C.A.), Nicol v. Nicol (1885), 30 Ch. D. 143, Langdon v. Langdon, 2015 MBQB 153, Sandrelli v. Sandrelli, 2015 ONSC 7913, Hartshorne v. Hartshorne, 2004 SCC 22

Leslie v. Encanto Potash Trading Corporation, 2021 ONCA 464

Keywords: Contracts, Breach of Contract, Summary Judgment, Evidence, Cross-appeal, Costs, Interlocutory Appeal, Courts of Justice Act, R.S.O. 1990, c.43, Section 6(2), Rules of Civil Procedure, Rule 39.03

Moncur v. Plante, 2021 ONCA 462

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Enforcement, Civil Contempt, Carey v. Laiken, 2015 SCC 17, Greenberg v. Nowack, 2016 ONCA 949, Chong v. Donnelly, 2019 ONCA 799, Valoris pour enfants et adultes de Prescott-Russell c.K.R., 2021 ONCA 366, Ruffolo v. David, 2019 ONCA 385

Moore v. 7595611 Canada Corp., 2021 ONCA 459

Keywords: Torts, Negligence, Occupier's Liability, Standard of Care, Damages, Mental Distress, Loss of Care, Guidance, and Companionship, Cost of Future Care, Civil Procedure, Jury Selection, Fresh Evidence, Juries Act, R.S.O. 1990, c. J.3, s. 44(1), Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, s. 76, Fire Code, O. Reg. 213/07, Fatal Accidents Act, R.S.A. 2000, c. F-8, s. 8(2), To v. Toronto Board of Education (2001), 204 D.L.R. (4th) 704 (Ont. C.A.), Young v. Bella, 2006 SCC 3, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Fiddler v. Chiavetti, 2010 ONCA 210, Vokes Estate v. Palmer, 2012 ONCA 510, Rodrigues v. Purtill, 2019 ONCA 740, Gervais v. Richard (1984), 48 O.R. (2d) 191 (H.C.), Mason v. Peters (1982), 139 D.L.R. (3d) 104 (Ont. C.A.), Rodrigues v. Purtill, 2019 ONCA 740, Palmer v. The Queen, [1980] 1 S.C.R. 759

Tribute (Springwater) Limited v. Atif, 2021 ONCA 463

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Prejudgment Interest, Postjudgment Interest, Rules of Civil Procedure, Rule 25.06(9)(b), Courts of Justice Act, RSO 1990, c C43, ss 127, 128, 129, 130(1) and 130(2), Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51, 100, Main Street East Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (C.A.), 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.), Tribute (Springwater) Limited v. Sumera Anas, 2020 ONSC 5277, McKnight v. Ontario (Transportation), 2018 ONSC 52, Gyimah v. Bank of Nova Scotia, 2013 ONCA 252, Bank of America Canada v. Mutual Trust Co., 2002 SCC 43, Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R. (2d) 601 (C.A.), MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139, Forest Hill Homes v. Ou, 2019 ONSC 4332

CIVIL DECISIONS

Burns v. Brown, 2021 ONCA 450

[Brown J.A. (Motions Judge)]

COUNSEL:

J.A.B., acting in person
C. Doris, for the responding party
Keywords: Family Law, Civil Procedure, Appeals, Perfection of Appeal, Extension of Time, Rules of Civil Procedure, Rule 61.05(5), Issasi v. Rosenzweig, 2011 ONCA 112

FACTS:

The appellant brought a motion seeking an order to extend the time for the perfection of his appeal. The parties agreed to a settlement conference in March 2020. However, that conference was delayed due to the pandemic. Court timelines were reinstated on July 16, 2020, but the appellant did not contact the court to renew his request for a settlement conference until November 2020. Although the appellant did not receive a response until May 14, 2021, on January 4, 2021, the court sent the parties a Notice of Intention to Dismiss Appeal for Delay if the appeal was not perfected by April 27, 2021. The appellant deposed that he did not receive this notice.
The respondent no longer consented to a settlement conference. Therefore, Benotto J.A. advised the appellant that he must perfect his appeal by May 25, 2021. The appellant could not do so because he unilaterally suspended preparation of the trial transcript. The appellant reinstated the request for the...