Court Of Appeal Summaries (September 7 ' 10, 2021)

• Published date: 14 September 2021
• Subject Matter: Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Family Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Professional Negligence
• 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 September 7, 2021.

Congratulations to our very own Anthony H. Gatensby and W. Colin Empke for their success in Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance! In that case, the Court determined that there was no duty on the part of our client to defend its insured against two claims of breach of contract in an arbitration proceeding.

In James v. Chedli, a creditor made a demand for repayment of loans after the death of the debtor. The debtor's estate successfully brought a motion for summary judgment. The court set aside the motion judge's order, finding several palpable and overriding factual errors.

In Re: Urbancorp Toronto Management Inc., the Court refused to stay an order of the supervising CCAA judge ordering a sale process pending an appeal from the order.

Lastly, I am very excited and proud to help announce the release of 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.

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.

Together with my colleague, Natasha Rambaran, I had the privileged and honour to contribute two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference). I would like to thank Professor Semple for inviting me to participate in this very worthwhile project.

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, as the resource will not be static. The intention is for CPPO to be continually updated and improved.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590

Keywords: Contracts, Breach, Wrongful Termination, Duty of Good Faith, Bad Faith, Doctrine of Frustration, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Bhasin v. Hrynew, 2014 SCC 71, M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

Urbancorp Toronto Management Inc. (Re), 2021 ONCA 613

Keywords: Bankruptcy and Insolvency, Civil Procedure, Stay Pending Appeal, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Hodgson v. Johnston, 2015 ONCA 731, (Re) Brainhunter (2009), 62 C.B.R. (5th) 41 (Ont. Sup. Ct.), Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375

James v. Chedli, 2021 ONCA 593

Keywords: Evidence, Promissory Notes, Limitation, Standard of Review, Bills of Exchange Act, Evidence Act, Real Property Limitations Act, Limitations Act, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1. S.C.R. 401, Burns Estate v. Mellon (2000), 48 O.R. (3d) 641 (C.A.), Royal Bank v. Davidson (1972), 25 D.L.R. (3d) (N.S.C.A.), Goss v. Nugent (1833), 5 B & Ad. 58, 110 E.R. 713 (Eng. K.B.), Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200

Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance, 2021 ONCA 612

Keywords: Contracts, Interpretation, Insurance, Professional Errors and Omissions, Coverage, Duty to Defend, Standard of Review, Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; B.G. Checo International Ltd. v. British Columba Hydro and Power Authority, [1993] 1 S.C.R. 12, Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., [1995] 1 S.C.R. 85, Crum & Forster Specialty Insurance Company v. DVO, Inc., 939 F. (3d) 852 (7th Cir. Ct. App. 2019), Cabell v. The Personal Insurance Company, 2011 ONCA 105, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

Short Civil Decisions

Tanti v. Tanti, 2021 ONCA 607

Keywords: Family Law, Civil Procedure, Appeals

Dunn Aggregates Limited v. Coco Paving Inc., 2021 ONCA 604

Keywords: Contracts, Asset Purchase Agreement, Restrictive Covenants, Civil Procedure, Interlocutory Injunctions, Undertaking in Damages, Costs, Rules of Civil Procedure, Rule 40.03, United States of America v. Yemec, 2013 ONSC 50, 35 C.P.C. (7th) 57, aff'd 2014 ONCA 274

Alajajian v. Alajajian, 2021 ONCA 602

Keywords: Family Law, Property, Spousal Support, Standard of Review, Costs

Florovski v. Florovski, 2021 ONCA 606

Keywords: Family Law, Disclosure

CIVIL DECISIONS

Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590

[Rouleau, Hoy and van Rensburg JJ.A.]

COUNSEL:

J. Thomas Curry, B. Kolenda and A. Quinn, for the Appellant
J. Hoffman, for the Respondent

Keywords: Contracts, Breach, Wrongful Termination, Duty of Good Faith, Bad Faith, Doctrine of Frustration, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Bhasin v. Hrynew, 2014 SCC 71, M. Callow Inc. v. Zollinger, 2020 SCC 45, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

FACTS:

In the decision under appeal, the application judge dismissed the application of 2161907 Alberta Ltd. ("216") and granted the application of 11180673 Canada Inc. ("111"). 216 was ordered to pay the Branding Fee (defined below) and was declared to have acted in bad faith, having had no valid reason to terminate the agreements between the parties.

216 holds the Ontario rights to the "Tokyo Smoke" cannabis brand and licenses it to various retail operators. 111 won a cannabis retail operator license in an August 2019 allocation lottery by the Alcohol and Gaming Commission of Ontario's ("AGCO"). In November 2019, 111 and AGCO entered into a License Agreement for the use of the Tokyo Smoke brand and a Sublease, whereby 111 rented the retail premises from 216 for the operation of a cannabis store. 216 offered 111 funding for start-up costs, including monthly rent of $105,409.03, and an approximately $2 million inducement to open under the Tokyo Smoke banner (the "Branding Fee"). The Branding Fee was due once 111 obtained its Retail Store Authorization from the AGCO.

Two days before opening, a dispute arose and 216 refused to pay 111's June rent. Accordingly, 111 advised 216 that it would be laying off employees and not opening the...