Court Of Appeal Summaries (March 7 ' 11, 2022)

• Published date: 16 March 2022
• Subject Matter: Employment and HR, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Health & Safety, Family Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Construction & Planning, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 7, 2022.

In Ernst & Young Inc. v. Aquino, the court upheld the application judge's decision to grant the orders the Bondfield monitor and trustee in bankruptcy requiring payments made at undervalue to be repaid. In coming to its decision, the Court applied the corporate attribution doctrine.

In Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure), the Court allowed an appeal from the application judge's determination that COVID-19 safety protocols imposed on the contractor building the Eglinton Crosstown line at the beginning of the pandemic triggered an inquiry under the construction contract that might result in an extension of time to complete the project (thereby avoiding significant financial penalties arising from the delay). In allowing the appeal, the Court noted that the project was already a year behind schedule before the pandemic began.

In Thermal Exchange Service Inc. v. Metropolitan Toronto Condominium Corporation No. 1289, the Court applied the "appropriate means" test under ss. 5(1)(a)(iv) of the Limitations Act, 2002 and related case law to a collection matter. The assurances of the debtor (a condo corp) that the invoices for HVAC repairs would be honoured after collection from the individual unit owners was analogized to the cases where a plaintiff postpones bringing an action because of assurances from a defendant who has a superior understanding of the problem that they will remedy the matter, such that litigation will not be necessary. The condo corp unsuccessfully argued on appeal that it was merely stringing the creditor along, and that this did not extend the limitation period.

In Hunter v. King, an MVA case, the Court held the trial judge had the authority to send a jury selected in Brampton to a trial heard in Kitchener.

Continental Casualty Company v. Chubb Insurance Company of Canada is a lengthy and complicated decision involving a SABS priority dispute.

In Cheung v. Samra, the Court allowed the appeal from a trial judge's judgment in a medmal case that ignored the jury's verdict. In answering questions put to it by the trial judge, a jury is not obligated to provide detailed answers and reasons for those answers.

Other topics included extension of time to perfect appeals, striking pleadings for want of jurisdiction in an employment dispute covered by a collective bargaining agreement, and agreements of purchase and sale of land.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure), 2022 ONCA 187

Keywords: Contracts, Interpretation, Construction, COVID-19, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(1) and (4), Occupational Health and Safety Act, R.S.O. 1990, c. O.1, R. v. Clark, 2005 SCC 2, Housen v. Nikolaisen, 2002 SCC 33, Crosslinx Transit Solutions General Partnership v. Ontario Infrastructure and Lands Corporation, 2021 ONSC 5905, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447

Thermal Exchange Service Inc. v. Metropolitan Toronto Condominium Corporation No. 1289 , 2022 ONCA 186

Keywords: Contracts, Construction, Debtor-Creditor, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Assurances, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 5(1)(a)(iv) and 5(2), Presley v. Van Dusen, 2019 ONCA 66, Presidential MSH Corp. v. Marr, Foster & Co. LLP, 2017 ONCA 325

Hunter v. King , 2022 ONCA 190

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Place of Trial, Jury Selection, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 14, Jurors Act, R.S.O. 1960, c.199, Rules of Civil Procedure, Rule 1.07(4), R. v. Singh, 2018 ONSC 1532, Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43, Louis v. Poitras, 2021 ONCA 49, Kapoor v. Kuzmanovski, 2018 ONSC 4770, R. v. Kapoor (1990), 52 C.C.C. (3d) 41 (Ont. H.C.), R. v. Parmar et al. (1987), 61 O.R. (2d) 132 (Ont. H.C.), Eastside Pharmacy Ltd. v. British Columbia (Minister of Health), R. v. Reid, 2016 ONCA 524, 2019 BCCA 60, Letourneau v. Ottawa Bronson Construction Ltd. et al., [1970] 1 O.R. 24, Bonello v. Gores Landing Marina (1986) Ltd., 2017 ONCA 632 Gordon D. Cudmore, Civil Evidence Handbook, loose-leaf, 4th ed. (Toronto: Thomson Reuters Canada Ltd., 2022)

Continental Casualty Company v. Chubb Insurance Company of Canada , 2022 ONCA 188

Keywords: Insurance, Statutory Accident Benefits, Priority Dispute, Arbitration, Standard of Review, Insurance Act, R.S.O. 1990, c.I.8 s. 268, Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10, O. Reg. 283/95 (Disputes Between Insurers), s. 2.1(6), Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(1), O. Reg. 283/95, Automobile Insurance Rate Stability Act, 1996 (Bill 59), Axa Boreal Assurances v. Co-operators Insurance Co. (2000), 50 0.R. (3d) 395 (C.A.), The Dominion of Canada General Insurance Company v. Federated Insurance Company of Canada (Arbitrator Densem - October 31, 2012), The Dominion of Canada General Insurance Company v. Lombard Insurance Company(McLean), 2013 CarswellOnt 19270, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, ACE INA Insurance v. Co-operators General Insurance Company (2009), 79 M.V.R. (5th) 312 (Ont. S.C.), Kingsway General Insurance Company v. Gore Mutual Insurance Company, 2012 ONCA 683, Echelon General Insurance Company v. Co-operators General Insurance Company, 2015 CarswellOnt 20908, Jevco Insurance Company v. Chieftain Insurance Company (Arbitrator Samworth - March 11, 2016), Co-operators General Insurance Company v. Certas Home & Auto Insurance Company (Arbitrator Cooper - April 2019)

Cheung v. Samra , 2022 ONCA 195

Keywords: Torts, Negligence, MedMal, Standard of care, Causation, Trials, Jury Verdicts, Judgments, Rules of Civil Procedure, Rule 52.08, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 108(4), (5) and (6), Stilwell v. World Kitchen Inc., 2014 ONCA 770, McLean v. Knox, 2013 ONCA 357, R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Suzack (2000), 30 C.R. (5th) 346 (Ont. C.A.), Wade v. C.N.R., [1978] 1 S.C.R. 1064, Surujdeo v. Melady, 2017 ONCA 41, Lang v. McKenna (2000), 135 O.A.C. 304, Jarbeau v. McLean, 2017 ONCA 115, Teskey v. TTC (2003), 3 C.P.C. (6th) 181, Salter v. Hirst, 2010 ONSC 3440, aff'd 2011 ONCA 609, ter Neuzen v. Korn, [1995] 3 S.C.R. 674

Donovan v. Waterloo (Police Services Board) , 2022 ONCA 199

Keywords: Labour and Employment, Collective Bargaining Agreements, Human Rights, Discrimination, Settlements, Civil Procedure, Striking Pleadings, Jurisdiction, No Reasonable Cause of Action, Frivolous, Vexatious and Abuse of Process, Reasonable Apprehension of Bias, Police Services Act, R.S.O. 1990, c. P.15, Rules of Civil Procedure, r. 21.01(3)(a), 21.01(1)(b), 21.01(3)(d), 59.06(1), 37.13(2)(a), Donovan v. (Waterloo) Police Services Board, 2019 ONSC 818, Donovan v. Waterloo Regional Police Services Board, 2019 ONCA 845, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Desgrosseillers v. North Bay General Hospital, 2010 ONSC 142, Skof v. Bordeleau, 2020 ONCA 729, St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 S.C.R. 704, McCracken v. Canadian National Railway Company, 2012 ONCA 445

Ernst & Young Inc. v. Aquino , 2022 ONCA 202

Keywords: Bankruptcy and Insolvency, Transfers Undervalue, Fraudulent Conveyances, Monitors, Trustees in Bankruptcy, Corporations, Doctrine of Corporate Attribution, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 96, 97, Companies Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36, Rules of Civil Procedure, Rule 38.10(b), Fraudulent Conveyances Act, R.S.O. 1990, c. F. 29, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, Royal Bank of Canada v. North American Life Assurance Co., [1996] 1 S.C.R. 325, Freeman v. Pope (1870), L.R. 5 Ch. App 538, Urbancorp Toronto Management Inc. (Re), 2019 ONCA 757, Purcaru v. Seliverstova, 2015 ONSC 6679, Montor Business Corp. (Trustee of) v. Goldfinger, 2013 ONSC 6635, Juhasz Estate v. Cordiero, 2015 ONSC 1781, R. v. Théroux, [1993] 2 S.C.R. 5, Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662, DBDC Spadina Ltd. v. Walton, 2018 ONCA 60, Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020 SCC 25, Bulut v. Brampton (City), 48 O.R. (3d) 108 (C.A.), Bhasin v. Hrynew, 2014 SCC 71, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, CWB Maxium Financial Inc v. 2026998 Alberta Ltd, 2021 ABQB 137, Hutchingame Growth Capital Corporation v. Independent Electricity System Operator, 2020 ONCA 430, Deloitte & Touche v. Livent Inc.(Receiver of), 2017 SCC 63, King Insurance Finance (Wines) Inc. v. 1557359 Ontario Inc. (Willowdale Autobody Inc.), 2012 ONSC 4263

Sabatino v. Posta Ital Bar Inc. , 2022 ONCA 208

Keywords: Corporations, Oppression, Civil Procedure, Appeals, Jurisdiction, Perfection, Extension of Time, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 248, 255, Jadhav v. Jadhav, 2020 ONCA 19, Issasi v. Rosenzweig, 2011 ONCA 112, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), Denomme v. McArthur, 2013 ONCA 694, Derakhshan v. Narula, 2018 ONCA 658, Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, Wardlaw v. Wardlaw, 2020 ONCA 286, Sutherland Lofts Inc. v. Peck, 2017 ONCA 803, Henderson v. Henderson, 2014 ONCA 571, Aljawhiri v. Pharmacy Examining Board of Canada, 2019 ONCA 798

Jeff Day Hospitality Inc. v. Heritage Conservation Holdings, Canada, Inc. , 2022 ONCA 201

Keywords: Contracts, Interpretation, Implied Terms, Real Property, Agreements of Purchase and Sale of Land, Purchase Price Abatements, Deficiencies, Ontario Water Resources Act, R.S.O. 1990, c. O.40...