Court Of Appeal Summaries (October 18-22, 2021)

• Published date: 26 October 2021
• Subject Matter: Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Contract of Employment, Unfair/ Wrongful Dismissal, Family Law, Insurance Laws and Products, Constitutional & Administrative Law, Trials & Appeals & Compensation, Civil Law, Divorce, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are this week's summaries of the Court of Appeal for Ontario for the week of October 18, 2021.

In Kyko Global Inc v. M/S Crawford Bayley & Co., the Court upheld the dismissal of a motion to stay an action on the basis of a lack of jurisdiction or forum non conveniens. The claim at issue was by an Ontario corporation against its lawyers in India who had provided an opinion on the enforceability of a guarantee in India. Relevant to the Court's decision were the fact that reliance on the opinion occurred in Ontario and the opinion related to a contract made in Ontario.

Other topics covered this week included the calculation of damages in a wrongful dismissal matter relating to stock awards plan, family law (stay pending appeal of a custody and access order and summary judgment before an answer and financial disclosure were made), interveners in a private law appeal, the interpretation of a waiver of subrogation clause in an insurance policy, summary judgment in a debtor-creditor matter and extension of time to appeal in an estates matter.

For our readers who have not yet heard about it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School. I had the privileged to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

CPPO will serve as a guide to Ontario's Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

I would encourage all of our readers to consult CPPO in their daily practice, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745

Keywords: Civil Procedure, Interveners, Friends of the Court, Rules of Civil Procedure, Rule 13.02, Constitution Act, 1982, s. 35, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.) Foster v. West, 2021 ONCA 263, Fraser Hillary's Limited, 2018 ONCA 277, Halpern v. Canada (Attorney General) (2003), 169 O.A.C. 172 (C.A.), Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (Ont. C.A.)

S. v. A., 2021 ONCA 744

Keywords: Family Law, Custody and Access, Civil Procedure, Appeals, Stay Pending Appeal, Best Interests of the Child, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 30, D.C. v. T.B., 2021 ONCA 562, Bors v. Bors, 2021 ONCA 513, A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, Mattina v. Mattina, 2018 ONCA 641, Goldman v. Kudelya, 2017 ONCA 300

Battiston v. Microsoft Canada Inc., 2021 ONCA 727

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Stock Awards, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 60(a), (b), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Berlingieri v. DeSantis (1980), 31 O.R. (2d) 1 (C.A.)

Ilgner v. Box, 2021 ONCA 747

Keywords: Wills and Estates, Wills, Validity, Civil Procedure, Appeals, Perfection, Extension of Time, Chuang v. Royal College of Dental Surgeons of Ontario (2005), 77 O.R. (3d) 280 (Div. Ct.)

Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736

Keywords: Contracts, Conflict of Laws, Jurisdiction Simpliciter, Forum Non Conveniens, Standard of Review, Rules of Civil Procedure, Rule 25.10, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Ontario v. Rothmans Inc., 2013 ONCA 353, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, Airia Brands Inc. v. Air Canada, 2017 ONCA 792, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, Haaretz.com v. Goldhar, 2018 SCC 28, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Central Sun Mining Inc. v. Vector Engineering Inc., 2013 ONCA 601, Sincies Chiemetin S.p.A (Trustee of) v. King, 2012 ONCA 653, Henry Estate v. Henry, 2012 MBCA 4

Hoang v. Mann Engineering Ltd., 2021 ONCA 742

Keywords: Civil Procedure, Appeals, Reconsideration, Vexatious Litigants, Rules of Civil Procedure, Rules 2.1.02, 61.16(6.1), Hoang v. Mann Engineering, 2020 ONCA 808, Trillium Motor Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 840, leave to appeal refused, [2017] S.C.C.A. No. 366, Owen Cornelius Mullings v. Jacqueline Alice Dian Robertson, 2020 ONCA 369, leave to appeal refused, [2020] S.C.C.A. No. 393, Collins v. Ontario, 2017 ONCA 317, leave to appeal refused, [2017] S.C.C.A. No. 245, Hoang v. Mann Engineering Ltd., 2015 ONCA 838

Hevey v. Hevey, 2021 ONCA 740

Keywords: Family Law, Equalization, Spousal Support, Civil Procedure, , Summary Judgment, Answers, Disclosure, Family Law Act, R.S.O. 1990, c. F.3, ss. 2(8), 7(3), Family Law Rules, O. Reg. 114/99, r. 16, Ramdial v. Davis, 2015 ONCA 726, Hryniak v. Mauldin, 2014 SCC 7, Housen v. Nikolaisen, 2002 SCC 33, Frick v. Frick, 2016 ONCA 799, Roberts v. Roberts, 2015 ONCA 450, Colucci v. Colucci, 2021 SCC 24, Vivier v. Vivier, 5 R.F.L. (3d) 450 (Ont. Dist. Ct.), Scherer v. Scherer (2002), 59 O.R. (3d) 393 (Ont. C.A.), Werth v. Werth, 2004 ONCJ 43, Hart v. Hart (1990), 27 R.F.L. (3d) 419 (Ont. U.F.C.), Douthwaite v. Douthwaite (1997), 32 R.F.L. (4th) 90 (Ont. Gen. Div.)

Weslease 2018 Operating LP v. Eastgate Pharmaceuticals Inc., 2021 ONCA 743

Keywords: Contracts, Debtor-Creditor, Settlement Agreements, Civil Procedure, Summary Judgment

Scaffidi-Argentina v. Tega Homes Developments , 2021 ONCA 738

Keywords: Contracts, Insurance, Interpretation, Additional Insured, Waiver of Subrogation, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Scaffidi-Argentina v. Tega Homes Developments Inc. et al., 2021 ONSC 3223

Short Civil Decisions

M.L. v. B.T., 2021 ONCA 734

Keywords: Family Law, Costs

Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 741

Keywords: Costs

Nelson v. TELUS Communications Inc. , 2021 ONCA 751

Keywords: Constitutional Law, Paramountcy, Interjurisdictional Immunity, Civil Procedure, Class Proceedings, Intervenors, Costs, Wireless Services Agreement Act, 2013, S.O. 2013, c. 8, s. 16

Pinder v. Biggar, 2021 ONCA 750

Keywords: Civil Procedure, Substantial Indemnity Costs, Delay

CIVIL DECISIONS

Foxgate Developments Inc. v. Jane Doe, 2021 ONCA 745

[Coroza J.A.]

COUNSEL:

B. Yellin, for the appellant, S.W

P. Demelo and K. Jennings, for the responding party, Foxgate Developments Inc.

B. Macdonald, for the responding party, Corporation of Haldimand County

R. Ogden and J. Shields, for the respondent Her Majesty the Queen in Right of Ontario

M. Eberts and J. Rogin, for the proposed intervener, 1492 Windsor Law Coalition

C. E. Kasper and J. Rudin, for the proposed intervener, Aboriginal Legal Services

C. Zwibel, for the proposed intervener, Canadian Civil Liberties Association

Keywords: Civil Procedure, Interveners, Friends of the Court, Rules of Civil Procedure, Rule 13.02, Constitution Act, 1982, s. 35, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.) Foster v. West, 2021 ONCA 263, Fraser Hillary's Limited, 2018 ONCA 277, Halpern v. Canada (Attorney General) (2003), 169 O.A.C. 172 (C.A.), Oakwell Engineering Limited v. Enernorth Industries Inc., 2006 CanLII 60327 (Ont. C.A.)

FACTS:

The order under appeal struck out the appellant's pleadings on an injunction motion brought by Foxgate Developments Inc. ("Foxgate") and the Corporation of Haldimand County ("Haldimand"). The motion judge found the appellant had engaged in an abuse of process due to the appellant's self-admitted contempt of court. The appellant also seeks leave to appeal the costs decision of the motion judge, which directed the appellant to pay Foxgate and Haldimand substantial costs. The appellant also brought a Notice of Constitutional Question and Third-Party Claim against Canada and Ontario. Both Canada and Ontario are third parties in the appeal.

The appeal is scheduled to be heard on October 26, 2021.

1492 Windsor Law Coalition ("1492 WLC"), Aboriginal Legal Services ("ALS"), and the Canadian Civil Liberties Association ("CCLA") brought motions for leave to intervene as a friends of the court pursuant to Rule 13.02 of the Rules of Civil Procedure.

Foxgate and Haldimand opposed the motions. Canada took no position. Ontario consented to the motions to intervene by the CCLA and ALS and took no position on 1492 WLC's motion.

ISSUES:

(1) Should 1492 WLC, ALS, and/or CCLA be granted status to intervene in the appeal as friends of the court?

HOLDING:

Motions dismissed.

REASONING:

(1) No.

In determining these motions to intervene as friends of the court, the court must consider the general nature of the case, the issues that arise in the case, and...