COURT OF APPEAL SUMMARIES (JUNE 7 ' 11)

• Published date: 17 June 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Real Estate and Construction, Criminal Law, Family and Matrimonial, Contract of Employment, Discrimination, Disability & Sexual Harassment, Health & Safety, Family Law, Court Procedure, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Real Estate, Crime, 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 7, 2021.

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In O'Reilly v. ClearMRI Solutions Ltd, the Court set aside the motion judge's determination that that the two appellant corporations were common employers, and set aside the judgment against one of them. The motion judge had not properly applied the law relating to the separate corporate personalities. Just because corporations are related or commonly controlled, that does not automatically make both of them liable for the obligations of the other. The Court upheld the conditional liability of a director for unpaid wages under s. 131 of the Ontario Business Corporations Act.

In Charlesfort Development Limited v Ottawa (City), the Court concluded that the City's duty to process a rezoning application did not give rise to a duty of care on the part of the City towards the developer to notify it of all information within the City's knowledge that might affect the viability or profitability of a proposed development.

In Eynon v. Simplicity Air Ltd, the Court upheld a jury's award of punitive damages against an employer for the improper conduct of its employees in a workplace health and safety case.

In Wiseau Studio, LLC v. Harper,, on a motion to review, the Court, with very brief reasons, set aside Justice Thorburn's ground-breaking order for security for judgment ordered against the appellants. The order was based on the appellants' concession that their appeal was frivolous. However, now that they had articulated their appeal and perfected it, they were permitted to resile from their concession. The order for security for costs of the trial and appeal was left undisturbed.

Other topics covered this week included child protection, stay pending appeal in a custody and access case, and a solicitor's liability for a false statement on the registration of a document on title.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Charlesfort Development Limited v. Ottawa (City) , 2021 ONCA 410

Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Reasonable Foreseeability, Reasonable Reliance, Pure Economic Loss, Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, 16688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

Children's Aid Society of Algoma v. G.C, 2021 ONCA 400

Keywords: Family Law, Child Protection, Civil Procedure, Summary Judgment, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1., ss 74(2)(d), Family Law Rules, O. Reg. 114/99, Rules 16(6.1) and (6.2), Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316

O'Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385

Keywords: Contracts, Employment, Common Employer Doctrine, Corporations, Doctrine of Separate Legal Pesonality, Unpaid Wages, Directors' Liability, Business Corporations Act, R.S.O. 1990, c. B.16, s. 131, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Sinclair v. Dover Engineering Services Ltd., 49 D.L.R. (4th) 297 (B.C.C.A.), Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, Downtown Eatery (1993) Ltd. v. Her Majesty the Queen in Right of Ontario (2001), 54 O.R. (3d) 161 (C.A.), Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Housen v. Nikolaisen, 2002 SCC 33

Eynon v. Simplicity Air Ltd., 2021 ONCA 409

Keywords: Torts, Negligence, Contributory Negligence, Personal Injury, Labour and Employment, Workplace Health and Safety, Damages, Punitive Damages, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A., s. 22.1, s.155.1, s.158(1), Whiten v. Pilot Insurance Co., 2002 SCC 18, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, Rutman v. Rabinowitz, 2018 ONCA 80

K.K. v. M.M., 2021 ONCA 407

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Security for Costs, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Rules of Civil Procedure, Rule 61.06(1)(a), Lefebvre v. Lefebvre (2002), 167 O.A.C. 85 (C.A.), Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

Wiseau Studio, LLC v. Harper, 2021 ONCA 396

Keywords: Civil Procedure, Appeals, Security for Judgement, Security for Costs, Orders, Enforcement

Bank of Montreal v. Cadogan, 2021 ONCA 405

Keywords: Contracts, Professional Liability, Lawyers, Real Property, Parcel Register, Registration of Documents, Law Statements, Civil Procedure, Summary Judgment, Adjournments, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Toronto-Dominion Bank v. Hylton, 2010 ONCA 752

Short Civil Decisions

Manicom v. Manicom, 2021 ONCA 399

Keywords: Family Law, Corporations, Contracts, Share Purchase Agreements, Restrictive Covenants, Remedies, Specific Performance

Luangchaleun (Re), 2021 ONCA 398

Keywords: Reintegration into Community, Conditional Discharge, Absolute Discharge, Substance Abuse, section 672.78(1)(a) of the Criminal Code of Canada, R. v. Owen, [2003] 1 S.C.R. 779

Dhatt v. Beer, 2021 ONCA 412

Keywords: Contracts, Agreements of Purchase and Sale of Land, Civil Procedure, Costs

De Palma v. Canadian Federation of Independent Business, 2021 ONCA 406

Keywords: Contracts, Employment, Constructive Dismissal, Intentional Infliction of Mental Suffering, Long Term Disability, Accommodation, Civil Procedure, Summary Judgment, Adjournments, Ontario Human Rights Code, R.S.O. 1990, c. H.19, Rules of Civil Procedure, Rules 20.01(3), 20.04(2.1)

CIVIL DECISIONS

Charlesfort Development Limited v. Ottawa (City),, 2021 ONCA 410

[Harvison Young J.A.]

Counsel:

A. Tomkins and A. Tardif, for the respondent

T.J. Hill and M. van Zandvoort, for the respondent

Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Reasonable Foreseeability, Reasonable Reliance, Pure Economic Loss, Anns v. London Borough of Merton, [1977] 2 All E.R. 492 (H.L. (Eng.)); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, 16688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

facts:

The respondent purchased a property with intent to redevelop it into a 15-storey condominium tower with a two-story underground parking garage. The purchase was conditional on the approval of a rezoning application from a general commercial designation to a residential designation. This rezoning would change the setback below ground level to allow for a proposed underground parking site to extend to the property lines with no setback. While deliberating the zoning application, a City engineer noted a four foot water main just north of the property - this information was not forwarded to the Infrastructure Approvals division or to the respondent.

The rezoning application was approved in 2005 and the Ontario Municipal Board approved a one-meter setback above-grade and no provision for a below-grade setback. The respondent then waived the conditions relating to rezoning and acquired the property.

In August 2007, the respondent applied for site plan approval expecting construction to be completed by the summer of 2009. In October 2007, the City asked for revised drawings including the water main and the easement. The respondent complied, obtained a demolition permit, and applied for an excavation permit. The City then realized the water main was very close to the property line and was concerned about a potential breach and whether the easement alone was enough to protect the water main. Ultimately, the respondent had to adjust its plans and increase the distance between the edge of the parking garage and excavation area and the water main to receive an excavation permit from the City. In 2008, the respondent received an excavation permit and site plan approval, and the condominium was completed in 2011, two years later than originally scheduled.

The trial judge held that the City owed the respondent a duty of care during the rezoning process in the context of a negligent misrepresentation claim. The trial judge went on to find that the City could reasonably foresee that the respondent would rely on its representations and that the respondent would incur losses if the representations were inaccurate. If the respondent had known about the water main in 2005, it would not have waived the conditions of purchase and would have found another property on which to build its condominium. The trial judge found in favour of the respondent and...