Court Of Appeal Summaries (November 1-5, 2021)

Published date10 November 2021
Subject MatterLitigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Trials & Appeals & Compensation
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good evening.

Please find below our summaries of the civil decisions of the Ontario Court of Appeal for the week of November 1, 2021. There were four substantive civil decisions this week, one of which was 300 pages long.

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Congratulations to our own Lou Brzezinski and Alex Fernet Brochu for their success in Pantziris v. 1529439 Ontario Limited. In that case, the Court dismissed an appeal by the bankrupt against the motion judge's decision to set aside the transfers under value of the estate's two main assets by the bankrupt to his wife and mother.

In Restoule v. Canada (Attorney General), the Court released a substantial 300-page decision centered on issues pertaining to the Crown's obligation to pay a perpetual annuity to the Anishinaabe based on land Treaties entered into in 1850.

In Bowman v. Ontario, the Court granted and dismissed motions for leave to intervene by the Canadian Civil Liberties Association and Income Security Advocacy Centre, respectively.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Pantziris v. 1529439 Ontario Limited , 2021 ONCA 784

Keywords: Bankruptcy and Insolvency, Transactions Under Value, Fraudulent Conveyances, Preferences, Civil Procedure, Limitation Periods, Costs, Limitations Act, 2002 S.O. 2002 c. 24, Sch. B, s. 12, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 96(1), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Personal Property Security Act, R.S.O. 1990, c. P.10

Restoule v. Canada (Attorney General) , 2021 ONCA 779

Keywords: Aboriginal Law, Crown Liability, Sui Generis Fiduciary Duty, Treaties, Interpretation, Honour of the Crown, Crown Immunity, Justiciability, Civil Procedure, Standard of Review, Limitation Periods, Costs, Royal Proclamation of 1763, Constitution Act, 1982, Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109, Limitations Act, R.S.O. 1990, c. L.15, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, Guerin v. The Queen, [1984] 2 S.C.R. 335, Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, Southwind v. Canada, 2021 SCC 28, Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, Attorney General of Belize & Ors v. Belize Telecom Ltd & Anor, [2009] UKPC 10, [2009] 2 All E.R. 1127, First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, Nolan v. Kerry (Canada) Inc., 2009 SCC 39, Walker v. Ritchie, 2006 SCC 45, Frazer v. Haukioja, 2010 ONCA 249, Bondy-Rafael v. Potrebic, 2019 ONCA 1026, Whitfield v. Whitfield, 2016 ONCA 720, Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, Attorney-General for the Dominion of Canada v. Attorney-General for Ontario, [1897] A.C. 199 (J.C.P.C.), R. v. Marshall, [1993] S.C.R. 456, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227, Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Mitchell v. M.N.R., 2001 SCC 33, Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286, Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, West Moberly First Nations v. British Columbia, 2020 BCCA 138, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Roncarelli v. Duplessis, [1959] S.C.R. 121, Tanudjaja, v. Canada (Attorney General), 2014 ONCA 852, 123 O.R. (3d) 161, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, R. v. Van der Peet, [1996] 2 S.C.R., Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Caron v. Alberta, 2015 SCC 56, R. v. Sioui, [1990] 1 S.C.R. 1025, R. v. Desautel, 2021 SCC 17, R. v. Badger, [1996] 1 S.C.R. 771, Chilton v. Co-Operators (1997), 143 D.L.R. (4th) 647, Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, R. v. Sundown, [1999] 1 S.C.R. 393, Quebec (Attorney General) v. Moses, 2010 SCC 17, Fort McKay First Nation v. Prosper Petroleum Ltd., 2019 ABCA 14, Fontaine v. Canada (Attorney General), 2017 SCC 47, MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, Housen v. Nikolaisen, 2002 SCC 33, R. v. Morris, 2006 SCC 59, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168, Wewaykum Indian Band v. Canada, 2002 SCC 79, Tito v. Waddell (No. 2), [1977] 3 All E.R. 129, Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, TELUS Communications Inc. v. Wellman, 2019 SCC 19, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, R. v. McColman, 2021 ONCA 382, Solar Power Network Inc. v. ClearFlow Energy Finance Corp., 2018 ONCA 727, Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, Pawis v. Canada, [1980] 2 F.C. 18, Fletcher v. Ontario, 2016 ONSC 5874

Forest Hills Homes (Cornell Rouge) Limited v. Hon , 2021 ONCA 774

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Third Party Claims, Res Judicata

Bowman v. Ontario , 2021 ONCA 795

Keywords: Poverty Law, Crown Liability, Civil Procedure, Interveners, Class Proceedings, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2021 ONCA 749

Short Civil Decisions

Dimakis v. Vitucci , 2021 ONCA 778

Keywords: Costs

Yekrangian v. Boys , 2021 ONCA 777

Keywords: Costs, Yekrangian v. Boys, 2021 ONCA 629


Pantziris v. 1529439 Ontario Limited, 2021 ONCA 784

[Doherty, Miller and Sossin JJ.A.]


S. Bellissimo, K. Bezprozvannykh and F. Bennett, for the appellants
Lou Brzezinski and Alex Fernet Brochu, for the respondents

Keywords: Bankruptcy and Insolvency, Transactions Under Value, Fraudulent Conveyances, Preferences, Civil Procedure, Limitation Periods, Costs, Limitations Act, 2002 S.O. 2002 c. 24, Sch. B, s. 12, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 96(1), Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2, Personal Property Security Act, R.S.O. 1990, c. P.10


In the decision under appeal, the motion judge found in favor of the respondent, the Trustee in bankruptcy (the "Trustee") on all issues.

In October 2013, the court made a bankruptcy order against Mr. P. (the "bankrupt") and appointed the Trustee. The Trustee brought a summary judgment motion seeking to set aside the transfer of the estate's two main assets by the bankrupt to related parties:

1. the transfer by the bankrupt of the bankrupt's 50% interest in his residence to his wife for $2; and

2. the transfer of the bankrupt's shares in the appellant, 1529439 Ontario Limited, a related corporation wholly owned by the bankrupt's mother, ("the shares") to the appellant, ASPE Consulting Services Ltd. ("ASPE"), a related corporation also controlled by the bankrupt's mother.

The appellants brought a cross-motion for dismissal of the Trustee's claims on the grounds that:

1. the proceedings constituted a misuse of the bankruptcy process and an attempt by the main creditor, Cobalt Capital Textile Investments L.P. ("Cobalt Capital"), to obtain double recovery from the bankrupt; and

2. the claims were time-barred under the Limitations Act, 2002, S.O. 2002 c. 24, Sch. B.


(1) Did the motion judge err in vesting the bankrupt's 50% interest in the residence in the Trustee?

(2) Did the motion judge err in setting aside the share transfer to ASPE and ordering that the Trustee be made the registered owner of the shares?

(3) Did the motion judge err in finding the limitation period had not expired?

(4) Did the motion judge err in finding there was no abuse in process by Cobalt Capital?

(5) Did the motion judge err in granting the Trustee costs on a partial indemnity basis?


Appeal dismissed.


(1) No

The motion judge's findings of fact were fully justified based on the evidence, and there was no basis upon which to interfere. After a thorough review of the evidence, the motion judge concluded the bankrupt's transfer of his 50% interest in the residence was both an "undervalue" transfer within the meaning of s. 96(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA") and a fraudulent conveyance under s. 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 ("FCA").

(2) No.

The motion judge's findings of fact are fully supported by the evidence, and there is no basis upon which to interfere...

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