Court Of Appeal Summaries (November 22-26, 2021)

• Published date: 30 November 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Litigation, Mediation & Arbitration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Retirement, Superannuation & Pensions, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Family Law, Insurance Laws and Products, Trials & Appeals & Compensation, Libel & Defamation, Securities, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the Court of Appeal for Ontario for the week of November 22, 2021.

In Blair v Ford, the Court dismissed an appeal by Brad Blair from the dismissal of his defamation claim against Premier Doug Ford. In the process, the Court again summarized the law applicable to Anti-SLAPP motions brought under section 137.1 of the Courts of Justice Act. Even though Mr. Blair's action against the Premier was not a classic form of strategic litigation against public participation, the Anti-SLAPP provisions were still available to protect the Premier's speech and to dismiss the action against him at the preliminary stage.

In Ottawa (City) v. ClubLink Corporation ULC, the provisions of an agreement requiring a golf course owner and operator to convey the land to the City if it ceased to operate the golf course created an interest in land in favour of the City. However, given that the operator ran the golf course for 24 years, the interest did not vest with the City until after the expiry of the 21 year period prescribed by the rule against perpetuities. Accordingly, the City's interest in the land was void and unenforceable as being contrary to that rule. The appeal was allowed.

In Baldwin v. Imperial Metals Corporation, the Court considered the role of "public correction" in a shareholder's proposed class action for misrepresentation in the secondary securities market pursuant to s.138.3 of the Securities Act. The Court concluded that there need not be facial symmetry between the public correction and the alleged misrepresentation or omission for the action to be allowed to proceed. While most of the secondary market misrepresentation cases that have come before the courts in Canada have involved express public corrections of prior representations, an express correction is not required. A plaintiff is not precluded from asking the court to infer a correction based on something other than an express statement by the issuer. The appeal was allowed and the matter remitted to the Superior Court for a determination of the motion for leave to commence the proceeding.

In a sad case, Adam v. Ledesma-Cadhit, the appellant's five year old daughter died five days after being administered a swine flu vaccine manufactured and distributed by the respondent GSK. The Court upheld the trial judge's dismissal of this product liability action on the basis that GSK had fulfilled its duty to warn of the risks of the vaccine by relying on the prescribing doctor to explain the risks to the patient (the learned intermediary rule).

In Mandel v. 1909975 Ontario Inc., the Court held that the application judge made no error in exercising his discretion to decline jurisdiction to determine whether the issuance of shares in a corporation was void because the shares were never paid for. The only dispute was with CRA, and the application judge was therefore correct to decline jurisdiction in favour of the Tax Court of Canada.

For our readers who are not yet aware of it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. 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. I had the privileged of co-writing two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

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.

I would encourage all of our readers to consult CPPO in their daily practice, to spread the word among colleagues, and to provide any feedback they may have.

Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

MDS Inc. v. Factory Mutual Insurance Company , 2021 ONCA 837

Keywords: Contracts, Interpretation, Insurance, Coverage, Civil Procedure, Trials, Costs, Disbursements, Expert Fees, Courts of Justice Act, RSO 1990, c C43, ss 131(1), Rules of Civil Procedure, Rule 57.01(1), Charlesfort Developments Limited v. Ottawa (City), 2021 ONCA 542, leave to appeal S.C.C. requested, 39818, Fan (Guardian ad litem of) v. Chana, 2011 BCCA 516

Adam v. Ledesma-Cadhit , 2021 ONCA 828

Keywords: Torts, Negligence, Product Liability, Duty of Care, Duty to Warn, Standard of Care, Learned Intermediary, Causation, Civil Procedure, Costs, Public Interest Litigation, Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, Housen v. Nikolaisen, 2002 SCC 33, R. v. G.F., 2021 SCC 20, F.H. v. McDougall, 2008 SCC 53, Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, Dickie v. Minett, 2014 ONCA 265, Clements v. Clements, 2012 SCC 32, Rothwell v. Raes (1990), 2 O.R. (3d) 332 (CA)

Caruso v. Bortolon , 2021 ONCA 842

Keywords: Corporations, Fraud, Civil Procedure, Summary Judgment, Limitation Periods, Adjournments, Fresh Evidence, Limitations Act, 2002, SO 2002, c 24, Sch B, Rules of Civil Procedure, Laski v. BMO Nesbitt Burns Inc., 2020 ONCA 300

Mandel v. 1909975 Ontario Inc., 2021 ONCA 844

Keywords: Corporations, Shares, Issuance, Consideration, Tax Law, Tax Planning, Deemed Dispositions, Taxable Benefits, Remedies, Rectification, Civil Procedure, Applications, Appeals, Jurisdiction, Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 3, 12(1), 15(1), Business Corporations Act (Ontario), R.S.O. 1990, c. B.16, ss. 17(3), 23(3), 130(1), 250(1), 255, Retail Sales Tax Act, R.S.O. 1990, c. R.31, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 97, Tax Court of Canada Act, R.S.C. 1985, c. T-2, Rules of Civil Procedure, Rule 14.05, Baxter v. Attorney General of Canada, 2013 ONSC 3153, GLP NT Corp. v. Canada (Attorney General) (2003), 65 O.R. (3d) 840 (S.C.), Danso-Coffey v. Ontario, 2010 ONCA 171, Orman v. Marnat Inc., 2012 ONSC 549, Juliar v. Canada (Attorney General) (2000), 50 O.R. (3d) 728 (C.A.), Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, Dunham v. Apollo Tours Ltd. (1978), 20 O.R. (2d) 3 (H.C.), Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, Ewert v. Canada, 2018 SCC 30, Holmes v. Schoenfeld Inc., 2016 ONCA 148

Blair v. Ford, 2021 ONCA 841

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Interlocutory Orders, Jurisdiction, Police Services Act, R.S.O. 1990, c. P.15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2), s. 19(1)(b), s. 137.1, Rules of Civil Procedure, Rules 57.01 and 61.03(1)(b), PSA Code of Conduct, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Mader v. South Easthope Mutual Insurance Company, 2014 ONCA 714, Brown v. Hanley, 2019 ONCA 395, Cole v. Hamilton (City) (2002), 2002 60 O.R. (3d) 284, Brown v. Hanley, 2019 ONCA 395, Azzeh v. Legendre, 2017 ONCA 385, Platnick v. Bent, 2018 ONCA 68, Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166

Baldwin v. Imperial Metals Corporation, 2021 ONCA 838

Keywords: Securities, Secondary Market Misrepresentations, Civil Procedure, Class Proceedings, Leave to Commence Proceedings, Securities Act, R.S.O. 1990, c.S.5, ss. 138.3 and138.8, Class Proceedings Act, 1992 S.O. 1992, Drywall Acousting Lathing Insulation, Local 675 Pension Fund v. Barrick Gold Corporation, 2021 ONCA 104, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719, Swisscanto v. Blackberry, 2015 ONSC 6434, The Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2016 ONSC 5784, Cappelli v. Nobilis Health Corp., 2019 ONSC 2266, Kauf v. Colt Resources, Inc., 2019 ONSC 2179, Toward Improved Disclosure: A Search for Balance in Corporate Disclosure, interim report (Toronto: Toronto Stock Exchange, 1995), Ironworkers Ontario Pension Fund (Trustee of) v. Manulife Financial Corp., 2013 ONSC 4083, Mask v. Silvercorp Metals Inc., 2015 ONSC 5348

Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847

Keywords: Contracts, Real Property, Contingent Interests in Land, Rule against Perpetuities, City of Ottawa Act, 1999, S.O. 1999, c. 14, Sched. E, Canadian Long Island Petroleums Ltd. et al. v. Irving Industries Ltd., [1975] 2 S.C.R. 715, 2123201 Ontario Inc. v. Israel Estate, 2016 ONCA 409, London and South Western Railway Co. v. Gomm (1882), 20 CH. D. 562 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, City of Halifax v. Vaughan Construction Company Ltd. and the Queen, [1961] S.C.R. 715, Weinblatt v. Kitchener (City), [1969] S.C.R. 157, Jain v. Nepean (City) (1992), 9 O.R. (3d) 11 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 473, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2016 ONCA 246, aff'd 2017 ONCA 293, leave to appeal refused, [2016] S.C.C.A. No. 249, Loyalist (Township) v. The Fairfield-Gutzeit Society, 2019 ONSC 2203, Manchester Ship Canada Company v. Manchester Racecourse Company, [1901] 2 Ch. 37 (C.A.), Weber v. Texas Co., 83 F.2d 807 (5th Cir. 1936), Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, 3869130 Canada Inc. v. I.C.B. Distribution Inc., 2008 ONCA 396, Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, Fuller v. Aphria Inc., 2020 ONCA 403, Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020...