Court Of Appeal Summaries (December 6-10 And 13-17, 2021)

• Published date: 23 December 2021
• Subject Matter: Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Health & Safety, Family Law, Insurance Laws and Products, Constitutional & Administrative Law, Government Contracts, Procurement & PPP, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are our summaries of the civil decisions of the Ontario Court of Appeal for the weeks of December 6-10 and 13-17, 2021.

Congratulations to our very own Barry Prentice for his successful defence of the appeal in Stericycle ULC v. HealthPRO Procurement Services Inc. The Court dismissed the appeal in this contract case, determining that our client did not act in bad faith or in breach of contract by awarding the primary supplier designation to another biomedical waste management services provider rather than the appellant following a tendering process.

In Ontario (Labour) v Miller Group Inc., a workplace safety provincial offences matter, the Court allowed the Crown's appeal and ordered a new trial. The Justice of the Peace had erred in finding an infringement of s. 11(d) of the Charter as a result of the destruction of evidence. It was the defendant who had destroyed the evidence. The decision also confirms that the Ministry of Labour does not have to allow a defendant or its counsel to participate or be present in any investigation of the physical evidence.

In Murphy v. Mullen, the appellants appealed the trial judge's assessment of damages relating to liability for trespassing on the respondent's property by cutting down trees in order to address a drainage issue. The damages awarded were largely the cost of replacing the trees.

In P1 v XYZ School, a tort case relating to the assault of a student by classmates, the Court held that a publication ban and sealing order is a final order as far as the media is concerned, but is an interlocutory order as far as the parties themselves are concerned. Since the newspaper's appeal could proceed to the Court of Appeal as of right, the related appeal by some of the parties should also proceed at the same time without the need for them to seek leave.

In Mihoren v. Quesnel, a family law decision, the majority held that the motion judge erred in in refusing to set aside an administrative dismissal, given the explanation of lawyer inadvertence and given that the limitation period had not expired and a new claim could be commenced in any event. In dissenting reasons, Brown J.A. held the motion judge correctly refused to set aside the dismissal order and properly exercised her discretion to weigh the factors in the way she did. Even if the majority would have exercised its discretion differently, that was not a sufficient ground for appellate intervention. Brown J.A. remarked that the Court should resist the temptation to finely parse a judge's reasons in search of error.

Other topics included the extension of time to appeal, the refusal to adjourn a Will challenge application (the appeal was allowed), striking pleadings, the dismissal of a request to transfer a matter from Small Claims Court to Superior Court, agreement on essential terms, and the assignment of an exclusive use benefit by a tenant renting a commercial condominium unit.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Stericycle ULC v. HealthPRO Procurement Services Inc., 2021 ONCA 878

Keywords: Contracts, Duty of Good Faith, Contractual Interpretation, Tendering, Tantramar Sanitation & Trucking Ltd. v. Sackville (Town), 2006 NBQB 13, Aquatech v. Alberta (Minister of Environment and Parks), 2019 ABQB 62, Double N Earthmovers Ltd. v. Edmonton (City), 2007 SCC 3, Ledcor Construction Ltd. v. Northridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle Women's Fitness & Day Spa), 2011 ONCA 487, Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewage and Drainage District, 2021 SCC 7, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4

Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879

Keywords: Provincial Offices, Employment Law, Workplace Health and Safety, Evidence, Investigation, Lost Evidence, Unreasonable Search and Seizure, Presumption of Innocence, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, ss. 25(1) and 27(1)(a), CanadianCharter of Rights and Freedoms, ss. 8, 11(d), 24(1), 24(2), Provincial Offences Act, R.S.O. 1990, c. P. 33, ss. 121, 126, 131, 134, Criminal Code, R.S.C. 1985, c. C-46, s. 320.13(2), Ontario (Ministry of Labour) v. JR Contracting Property Services et al., 2011 ONCJ 316, R. v. Grant, 2009 SCC 32, R. v. Harrer, [1995] 3 S.C.R. 562, R. v. Spackman, 2012 ONCA 905, R. v. Darwish, 2010 ONCA 124, R. v. La, [1997] 2 S.C.R. 680, R. v. McCarthy (1996), 91 O.A.C. 348 (C.A.), rev'd [1996] 2 S.C.R. 460, R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), R. v. Dallas, 2002 BCSC 760, R. v. Egger, [1993] 2 S.C.R. 451, R. v. Abreha, 2019 ONCA 392, R. v. Hersi, 2019 ONCA 94, R. v. Stinchcombe, 1994 ABCA 113, aff'd [1995] 1 S.C.R. 754, R. v. Bero (2000), 137 O.A.C. 336, R. v. Knox (2006), 80 O.R. (3d) 515 (C.A.), R. v. Murray (1994), 75 O.A.C. 10, Ontario (Ministry of Labour) v. Lee Valley Tools Ltd., 2009 ONCA 387, R. v. White, [1999] 2 S.C.R. 417, R. v. Flis (2006), 205 C.C.C. (3d) 384 (Ont. C.A.), R. v. Devitt (1999), 139 C.C.C. (3d) 187 (Ont. C.A.)

Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Defences, Non est factum, Civil Procedure, Appeals, Extension of Time, Evidence, Affidavits, Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17, s. 9(3), Rules of Civil Procedure, Rule 25.07(4), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, Bobel v. Humecka, 2021 ONCA 757

Edgeworth v. Shapira, 2021 ONCA 871

Keywords: Torts, Unlawful Means Conspiracy, Intrusion Upon Seclusion, Conspiracy to Injure, Misrepresentation, Civil Procedure, Offers to Settle, Striking Pleadings, No Reasonable Cause of Action, Frivolous, Vexatious, Abuse of Process, Evidence, Medical Reports, Witnesses, Counsel, Removal of Solicitor of Record, Rules of Civil Procedure, Rules 21, 25, 33.06, Agribrands Purina Canada Inc. v. Kasamekas et al., 2011 ONCA 460, Beaird v. Westinghouse, 43 O.R. (3d) 581

Segura Mosquera v. Rogers Communications Inc., 2021 ONCA 876

Keywords: Civil Procedure, Small Claims Court, Transfer, Rules of the Small Claims Court, O. Reg 258/98, r. 13.05(2), Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073, Crane Canada Co. v. Montis Sorgic Associates Inc., [2006] O.J. No. 1999, Farlow v. Hospital for Sick Children, 100 O.R. (3d) 213, Vigna v. Toronto Stock Exchange (1998), 115 O.A.C. 393, Livingston v. Ould, 2 C.P.C. 41

Murphy v. Mullen, 2021 ONCA 872

Keywords: Torts, Trespass, Reasonable Foreseeability, Damages, Drainage Act, R.S.O. 1990, c. D.17, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, Michel v. Spirit Financial Inc., 2020 ONCA 398, 151 O.R. (3d) 583, Kates v. Hall, 1991 CanLII 1127 (B.C.C.A.), aff'g [1989] B.C.J. No. 1358 (S.C.), Wood Mountain Lakota First Nation No. 160 v. Goodtrack, 2020 SKCA 10, at paras. 24-26, leave to appeal refused, [2020] S.C.C.A. No. 345, De Wurstemberger v. Royalite Oil Co., [1935] 2 D.L.R. 177 (Alta. S.C. (A.D.)), Buckingham v. Graham (1996), 174 N.B.R. (2d) 330 (Q.B.), Shewish v. MacMillan Bloedel Ltd. (1990), 48 B.C.L.R. (2d) 290 (C.A.), Marsan v. G. T. P. Ry. Co. (1912), 4 Alta. L.R. 167 (S.C. (A.D.)), G.T. v. D. Saunders, 2014 ONSC 4422, Costello v. Calgary (City) (1995), 163 A.R. 241 (Q.B.), rev'd in part, 1997 ABCA 281, 152 D.L.R. (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566., G.H.L., Allan v. New Mount Sinai Hospital (1980), 28 O.R. (2d) 356 (H.C.J.), rev'd (1981), 33 O.R. (2d) 603 (C.A.), Bettel v. Yim (1978), 20 O.R. (2d) 617 (Co. Ct.), Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.), Dykhuizen v. Saanich (District) (1989), 63 D.L.R. (4th) 211 (B.C.C.A.), Carr-Harris v. Schacter and Seaton, [1956] O.R. 994 (H.C.J.), Livingstone v. The Rawyards Coal Company (1880), 5 App. Cas. 25, Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010)

Deepak Ruparell v. J.H. Cochrane Investments Inc., 2021 ONCA 880

Keywords: Contracts, Letters of Intent, Agreement on Essential Terms, Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th) 97 (Ont. C.A.)

P1 v. XYZ School , 2021 ONCA 901

Keywords: Torts, Assault, Constitutional Law, Freedom of the Press, Civil Procedure, Open Court Principle, Publication Bans, Sealing Orders, Appeals, Jurisdiction, Orders, Final or Interlocutory, Canadian Charter of Rights and Freedoms, Hendrickson v. Kallio, [1932] O.R. 675, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Houle v. St. Jude Medical Inc., 2018 ONCA 88, Scherchanski v. Lewis (1980), 20 O.R. (2d) 370, Morse Shoe (Canada) Ltd. v. Zellers Inc., (1997) 100 O.A.C. 116, Pennington v. Hawley, [2005] O.J. No. 3591, CanWest MediaWorks Inc v. Canada (Attorney General), 2007 ONCA 567, Enterprise Fund (Trustee of) v. Fisherman (2009), 55 O.R. (3d) 794 (C.A.), Dagenais v. Canadian Broadcasting Corp. (1994), O.R. (3d) 816), Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, Sherman Estate v. Donovan, 2021 SCC 25, Hollinger Inc. v. The Ravelston Corporation, 2008 ONCA 207, Blair v. Ford, 2021 ONCA 841, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.)

Hordo v. Zweig , 2021 ONCA 893

Keywords: Civil Procedure, Appeals, Extension of Time, Jurisdiction, Orders, Removing Solicitors of...