Court Of Appeal Summaries (July 19-23)

• Published date: 27 July 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Directors and Officers, Contracts and Commercial Law, Discrimination, Disability & Sexual Harassment, Family Law, Terrorism, Homeland Security & Defence, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Professional Negligence, Libel & Defamation, Food and Drugs Law, 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 July 19, 2021.

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In Florence v Benzaguen, the Court grappled with the issue of whether it is settled law in Ontario that doctors do not owe a duty of care to an unborn child pre-conception. After their mother was prescribed a fertility drug that was allegedly contraindicated, the Appellant triplets were born prematurely and have serious disabilities. The majority struck the Appellants' claim of negligence, holding that no duty of care is not recognized at law. The relationship between a doctor and an unborn child pre-conception lacks the necessary proximity to create a duty of care. The majority also adopted the recognized public policy concern of the conflict of interest that would be created if a doctor owed a concurrent duty of care to the patient and their future child. In dissent, Fairburn A.C.J.O. held that this issue was not settled law and ought to be decided at trial. I suspect this may not be the last word on the issue.

In Canadian Union of Postal Workers v. B'nai Brith Canada, the Court of Appeal dismissed B'nai Brith's appeal from an order dismissing its anti-SLAPP motion. The Canadian Postal Workers' Union had sued B'nai Brith in defamation arising out of public allegations that the Union supported terrorism.

Other topics covered this week included breach of contract in a sports dispute, negligent investigation and malicious prosecution, a mortgage action, the interpretation of election by-laws of a non-share capital corporation, and the presumption of resulting trust.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Flood v. Boutette, 2021 ONCA 515

Keywords: Torts, Liability of Public Authorities, Negligent Investigation, Malicious Prosecution, Misfeasance in Public Office, Harassment, Intentional Infliction of Emotional Distress, Fire Code, O. Reg. 213/07, Section 9.3, Building Code, O. Reg 332/12 s. 1.4.1.2, Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, Sections 21, 28, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Municipal Act, 2001, S.O. 2001, c. 25, s. 450, Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.), Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.), Good v. Waterloo (City) (2013), 67 O.R. (3d) 89 (S.C.), aff'd 72 O.R. (3d) 719 (C.A.), R. v. Shepherd, 2009 SCC 35, FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, Payne v. Mak, 2018 ONCA 622, City of Ottawa v. Bentolila, 2006 ONCJ 541, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Miazga v. Kvello Estate, 2009 SCC 51, Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348, Merrifield v. Canada (Attorney General), 2019 ONCA 205

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

Keywords: Torts, Negligence, Intentional Interference with Economic Relations, Civil Procedure, Default Judgments, Trials, Bifurcation, Deemed Admissions, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Costs, Rules of Civil Procedure, Rules 6.1.01 and 19.05(1), OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, aff'd. 2020 ONCA 659, OZ Merchandising Inc. v. Canadian Professional Soccer League, 2018 ONSC 7468, Correia v. Canac Kitchens, 2008 ONCA 506, R. v. C.(P.), 2015 ONCA 30, D.W. v. White, 2004 CanLII 22543 (ON CA), S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243 (C.A.)

MacIntyre v. Winter,, 2021 ONCA 516

Keywords: Family Law, Property, Resulting Trust, Gifts, Pecore v. Pecore, 2007 SCC 17, Kerr v. Baranow, 2011 SCC 10, F.H. v. McDougall, 2008 SCC 53, Bergen v. Bergen, 2013 BCCA 492, Christopher v. Freitas, 2019 ONCA 84, Chao v. Chao, 2017 ONCA 701, McNamee v. McNamee, 2011 ONCA 533, M. Gillen, L. Smith & D. W.M. Waters, Waters' Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012)

Chandrasegaram v. Canadian Tamil Medical Association, 2021 ONCA 526

Keywords: Voluntary Associations, Non-Share Capital Corporations, Bylaws, Interpretation, Officers and Directors, Elections, Annual General Meetings

Florence v. Benzaquen, 2021 ONCA 523

Keywords: Torts, Negligence, Wrongful Life, Duty of Care, Proximity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Family Law Act, R.S.O. 1990, c. F.3, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, Paxton v. Ramji, 2008 ONCA 697, Liebig v. Guelph General Hospital, 2010 ONCA 450, Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, 688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Edwards v. Law Society of Upper Canada, 2001 SCC 80, Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), aff'd (2004), 26 C.C.L.T. (3d) 246 (Ont. C.A.), X and Y (By Her Tutor X) v. Pal, [1991] NSWCA 302

Canadian Union of Postal Workers v. B'nai Brith Canada, 2021 ONCA 529

Keywords: Torts, Defamation, Anti-SLAPP, Defences, Truth, Justification, Fair Comment, Responsible Communication, Malice, Courts of Justice Act, R.S.O. 1990, c. C.43., s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Bent v. Platnick, 2020 SCC 23, WIC Radio Ltd. v. Simpson, 2008 SCC 40, Grant v. Torstar Corp., 2009 SCC 61, Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, Lascaris v. B'nai Brith Canada, 2019 ONCA 163, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130

Eisen v. 2293398 Ontario Inc., 2021 ONCA 537

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Default Judgment, Remedies, Possession, Appeals, Stay Pending Appeal, Zafar v. Saiyid, 2017 ONCA 919, Circuit World Corp. v. Lesperance, 33 O.R. (3d) 674, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Short Civil Decisions

Amrane c. Abraham, 2021 ONCA 536

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Canadian Charter of Rights and Freedoms, City of Toronto Act , 2006, SO 2006, vs. 11, Schedule A, Ontario Works Act , 1997, SO 1997, c. 25 Appendix A, Vancouver (City) v. Ward , 2010 SCC 27

CIVIL DECISIONS

Flood v. Boutette, 2021 ONCA 515

[Pepall, Roberts and Thorburn JJ.A.]

Counsel:

A. James and J. Greenberg, for the appellants, K.F. and A.M.L.

S. Pickard, for the appellants, J.P and S.P.

S.C. Handler, for the respondents

Keywords: Torts, Liability of Public Authorities, Negligent Investigation, Malicious Prosecution, Misfeasance in Public Office, Harassment, Intentional Infliction of Emotional Distress, Fire Code, O. Reg. 213/07, Section 9.3, Building Code, O. Reg 332/12 s. 1.4.1.2, Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, Sections 21, 28, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Municipal Act, 2001, S.O. 2001, c. 25, s. 450, Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.), Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.), Good v. Waterloo (City) (2013), 67 O.R. (3d) 89 (S.C.), aff'd 72 O.R. (3d) 719 (C.A.), R. v. Shepherd, 2009 SCC 35, FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, Payne v. Mak, 2018 ONCA 622, City of Ottawa v. Bentolila, 2006 ONCJ 541, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Miazga v. Kvello Estate, 2009 SCC 51, Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348, Merrifield v. Canada (Attorney General), 2019 ONCA 205

facts:

The Appellants, the Fs and the Ps, are residential landlords who own properties around the University of Windsor and rent them to university students. In 2006, a report from the Respondent, MS, the City's Chief Building Official, contained a retrofit enforcement strategy that recommended that the Fire Department look at suspected non-compliant lodging houses, as per the Fire Code; which was approved by various City departments. As part of this inspection, the Respondent, SB, a city fire-prevention officer, classified the Appellants' properties as lodging houses and charged them with Fire Code violations.

The trial judge hearing the Fire Code offences dismissed them, having held that the F Appellants' properties were not lodging houses within the meaning of the Fire Code and did not require a retrofit. Shortly after, the charges against the P Appellants were withdrawn.

The F and P Appellants sued the Respondents, SB, RM, LT, MS, MM, Windsor Fire and Rescue Services Department, and the Corporation of the City of Windsor ("the City") seeking damages for, among other things, negligent investigation, malicious prosecution, Charter violations and bad faith. The Appellants withdrew their claims against RM, MS, and MM before trial and the trial judge dismissed the remaining claims holding that (i) the Respondents had reasonable grounds to believe the properties were lodging houses prior to the laying charges, (ii) SB did not conduct a negligent investigation, and (iii) neither the investigation nor laying charges was motivated by malice.

The Appellants argued that the trial judge should not have dismissed the claims as (i) SB knew or ought to have known the buildings were not lodging houses and there were...