Court Of Appeal Summaries (February 22-25, 2022)

• Published date: 01 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Family Law, Class Actions, Trials & Appeals & Compensation, Landlord & Tenant - Leases, Civil Law, Divorce
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 22, 2022.

In Krause v. Bougrine, the Court found that an Ontario court has jurisdiction under section 21 of the Interjurisdictional Support Orders Act to order child support in the face of a valid but unenforceable (in Ontario) foreign child support Order. Section 21 specifically empowers an Ontario court to hear a new support application that takes into account the unenforceable foreign order as well as other information the court considers necessary in order to make a new support order.

In Johnson v. Ontario, the Class Action Clinic at the Windsor Law School was granted leave to intervene in a class action appeal involving the refusal to grant a class member an extension of time to opt out of a class proceeding. The Clinic is a non-profit legal service that, under the direction of professor Jasminka Kalajdzic, who has recognized expertise in class actions, and with the contribution of University of Windsor law students, provides public legal education, assistance in serving the rights and needs of class members, and policy analysis and empirical research on various class action issues. The Clinic was granted leave to file a 20-page factum and to make 10 minutes of oral submissions. One of the grounds for granting the Clinic intervener status was the quality of the draft factum that it filed with its motion materials.

Other topics covered were spousal and child support, a family dispute over the ownership and sale of a house under the Partition Act, and the refusal of an extension of time to seek leave to appeal in a case involving the failure to close under an agreement of purchase and sale of land.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Johnson v. Ontario , 2022 ONCA 162

Keywords: Civil Procedure, Class Proceedings, Interveners, Friends of the Court, Class Proceedings Act, 1992, S.O. 1992, Chapter 6, 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, 55 R.F.L. (8th) 270

Krause v. Bougrine, 2022 ONCA 161

Keywords: Family Law, Child Support, Civil Procedure, Foreign Orders, Enforcement, Jurisdiction, Statutory Interpretation, Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, Ont. Reg. 53/03 - Reciprocating Jurisdictions, Family Law Act, R.S.O. 1990, c. F.3, Cheng v. Liu, 2017 ONCA 104, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

Inniss v. Blackett, 2022 ONCA 166

Keywords: Real Property, Partition and Sale, Unjust Enrichment, Constructive Trust, Resulting Trust, Partition Act, R.S.O. 1990, c. P.4., Housen v. Nikolaisen, 2002 SCC 33, Pecore v. Pecore, 2017 SCC 17, Karen Patterson et al. v. Nadeen Patterson and The Estate of Barbara Patrick, 2018 ONSC 6884, Davis v. Davis, [1954] O.R. 23 (C.A.), Brienza v. Brienza, 2014 ONSC 6942

Hendriks v. Hendriks, 2022 ONCA 165

Keywords: Family Law, Spousal Support, Child Support, Orders, Variation, Material Change in Circumstances, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2(4), 17(7), Hickey v. Hickey, [1999] 2 S.C.R. 518, Rebenchuk v. Rebenchuk, 2007 MBCA 22, Bracklow v. Bracklow, [1999] 1 S.C.R. 420, L.M.P. v. L.S., 2011 SCC 64, Gray v. Gray, 2014 ONCA 659, Slongo v. Slongo, 2017 ONCA 272, Wharry v. Wharry, 2016 ONCA 930

Lamba v. Mitchell, 2022 ONCA 164

Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Leave to Courts of Justice Act, RSO 1990, c C43, s. 6(1)(a), Rules of Civil Procedure, R. 3.02(1) and 61.03.1(3), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, Sault Dock Co. v. Sault Ste. Marie (City) (1973), 34 D.L.R. (3d) 327 (Ont. C.A.), Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256, (Ont. C.A.)

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CIVIL DECISIONS

Johnson v. Ontario, 2022 ONCA 162

[Paciocco J.A. (Motion Judge)]

Counsel:

M. Sharp and N. S. Barkhordari, for the appellant

R. Bambers and L. Brost, for the respondent Her Majesty the Queen in right of Ontario

C. Smith, for the respondents G. J., M. S., and T, H,

A. Eckart, for the proposed intervener The Class Action Clinic, University of Windsor, Faculty of Law

Keywords: Civil Procedure, Class Proceedings, Interveners, Friends of the Court, Class Proceedings Act, 1992, S.O. 1992, Chapter 6, 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, 55 R.F.L. (8th) 270

facts:

This was a motion to intervene as a friend of the Court by The Class Action Clinic, University of Windsor, Faculty of Law (the "Clinic"), and relates to an appeal by D. P. of an unsuccessful motion for an extension of time to opt out of a class action. That class action was certified on behalf of persons incarcerated at the Elgin Middlesex Detention Centre between January 1, 2010 and May 18, 2017, against Ontario, and alleges a failure to provide medical care for inmates.

After the opt-out date for the class action had passed, D. P. filed a lawsuit against Ontario for delay in providing him with medical care while an inmate at the Elgin Middlesex Detention Centre, including during the period encompassed by the class action. In a letter accompanying its notice of intent to defend, Ontario referred to the class action and suggested that D. P. should discontinue his claim or limit it to the period outside of the class action. D. P. deposed that he was unaware of the class action when he instituted the action and upon learning about it, he brought a motion to extend the time to opt out of the class action. The motion judge dismissed the motion and ordered costs against D. P.

None of the parties opposed the Clinic's motion to intervene, but disagreed relating to the timing of the delivery of responding facta, and the time for oral argument. D. P.'s consent was contingent on an intervention order not delaying the scheduled appeal. Ontario's consent was contingent on the Clinic's intervention being without prejudice to Ontario's argument that if the adequacy of notice is recognized to be a factor to be considered in applications for extension of time to opt-out, that factor should not be applied during D. P.'s appeal because the adequacy of notice was not an issue before the motion judge, nor on appeal. D. P. disputed Ontario's position, but did not take issue with a neutral recital being made in the intervention order alerting the panel to the fact that this was an open issue.

issue:

(1) Should the Clinic be permitted to intervene as a friend of the Court in the appeal?

holdin...