Court Of Appeal Summaries (October 25-29, 2021)

• Published date: 03 November 2021
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, 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 October 25, 2021.

In Cavanaugh v. Grenville Christian College, a class proceeding, the Court dismissed an appeal by a boarding school from a decision on a common issues trial that found the school liable to the class for punitive damages as a result of systemic negligence and breach of fiduciary duty.

In Kawaguchi v. Kawa Investments Inc., the Court confirmed that pleadings in a multi-defendant action are considered closed pursuant to Rule 25.05 of the Rules of Civil Procedure when the time to reply to all defences has passed and all defendants who have not defended have been noted in default. Pleadings do not close at different times with respect to different defendants.

Other topics covered included mortgage enforcement against an estate, Crown liability and immunity in the Crown wardship context, standing and extension of time to appeal in the Anti-SLAPP context, a trial to determine damages payable pursuant to an undertaking in damages given in support of a request for an injunction, and oppression in the condominium context.

For our readers who have not yet heard about 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. 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. I had the privileged to co-author 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, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Bodnar v. Boban Estate, 2021 ONCA 746

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Defences, Laches, Civil Procedure, Summary Judgment, Issue Estoppel, Cause of Action Estoppel, Abuse of Process, Appeals, New Issues on Appeal, Statute of Frauds, R.S.O. 1990, c. S.19, Kaiman v. Graham, 2009 ONCA 77, Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, Ross v. Ross (1999), 1999 NSCA 162 (CanLII), 181 N.S.R. (2d) 22 (C.A.)

Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763

Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Appeals, Extension of Time, Standing, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3), 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, Howard v. Martin, 2014 ONCA 309, Leighton v. Best, 2014 ONCA 667, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Monteith v. Monteith, 2010 ONCA 78, Cunningham v. Hutchings, 2017 ONCA 938, 40 Park Lane Circle v. Aiello, 2019 ONCA 451

Miragliotta v. Zanette, 2021 ONCA 764

Keywords: Civil Procedure, Orders, Enforcement, Injunctions, Undertakings in Damages

Cavanaugh v. Grenville Christian College,, 2021 ONCA 755

Keywords: Torts, Systemic Negligence, Breach of Fiduciary Duty, Boarding Schools, Civil Procedure, Class Proceedings, Evidence, Experts, Whiten v. Pilot Insurance, 2002 SCC 18, Cavanaugh v. Grenville Christian College, 2012 ONSC 2995, affd 2013 ONCA 139, 360 D.L.R. (4th) 670, Cavanaugh v. Grenville Christian College, 2012 ONSC 2398, Cavanaugh v. Grenville Christian College, 2014 ONSC 290, Housen v. Nikolaisen, 2002 SCC 33, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Rumley v. British Columbia, 2001 SCC 69

McFlow Capital Corp v. James, 2021 ONCA 753

Keywords: Real Property, Condominiums, Oppression, Remedies, Punitive Damages, Civil Procedure, Substantial Indemnity Costs, Prejudgment Interest, Limitations Act, 2002, S.O. 2002 c.24, s. 5(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 128, Condominium Act 1998, S.O. 1998, c. 19, Section 135, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, Whiten v. Pilot Insurance Co., 2002 SCC 18, Richard v. Time Inc., 2012 SCC 8, Cinar Corporation v. Robinson, 2013 SCC 73, Sliwinski v. Marks (2006), 211 O.A.C. 215, Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C 315, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 , Duong v. NN Life Insurance Co. of Canada (2001) 141 O.A.C. 307, Metropolitan Toronto Police Widows & Orphans Fund v. Telus Communications Inc. (2008), 44 B.LR. (4th), Bank of America Canada v. Mutual Trust Co., 2002 SCC 43

P.Y. v. Ontario (Attorney General), 2021 ONCA 761

Keywords: Torts, False Arrest, False Imprisonment, Malicious Prosecution, Charter Breaches, Negligent Investigation, Defamation, Breach of Statutory Duty, Misfeasance in Public Office, Crown Liability, Crown Immunity, Family Law, Custody and Access, Child Protection, Crown Wardship, Civil Procedure, Limitation Periods, Summary Judgment, Youth and Family Services Act, 2017, ss. 87(8), 87(9), 142(3), Rules of Civil Procedure, Rule 20, Limitations Act, 2002, S.O. 2002, c.24, Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s 8, Canadian Charter of Rights and Freedoms, Catholic Children's Aid Society of Toronto v. A.M.Y., 2013 ONCJ 585, CCAS Toronto v. AMY and PY, 2014 ONSC 6526, Catholic Children's Aid Society of Toronto v. A.Y., 2015 ONCA 493, A.Y. v. Catholic Children's Aid Society of Toronto, [2015] S.C.C.A. No. 415, Hryniak v. Mauldin, 2014 SCC 7, Hinse v. Canada (Attorney General), 2015 SCC 35, Miazga v. Kvello Estate, 2009 SCC 51

Kawaguchi v. Kawa Investments Inc., 2021 ONCA 770

Keywords: Civil Procedure, Close of Pleadings, Discontinuance, Summary Judgment, Abuse of Process, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 1.04, 23.01(1), 24.01, 25.05, 26.02(a), 29.08(1), 29.1.03(2), 31.04(1), 47.01, 48.01, and 76.03(1), Holterman v. Fish, 2017 ONCA 769, Angelopoulos v. Angelopoulos (1986), 55 O.R. (2d) 101, Toronto (City) v. Abasi, 1990 CarswellOnt 2289, Glasjam Investments Ltd. v. Freeman, 2014 ONSC 3878, Smith v. Dueck, 1997 CarswellBC 792, De Shazo v. Nations Energy Co., 2006 ABCA 400, DLC Holdings Corp. v. Payne, 2021 BCCA 31, Fox v. Star Newspaper Company, [1898] 1 Q.B. 636, Schlund v. Foster (1908), 11 O.W.R. 175, Blum v. Blum, [1965] 1 O.R. 236, Hennig v. Northern Heights (Sault) Ltd. (1980), 30 O.R. (2d) 346, Sampson v. City of Kingston, 1981 CarswellOnt 2747, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Short Civil Decisions

A v. A, 2021 ONCA 748

Keywords: Family Law, Divorce, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 22

Elguindy v. Elguindy, 2021 ONCA 768

Keywords: Civil Procedure, Appeals, Extension of Time, Orders, Setting Aside, Rules of Civil Procedure, Rule 59.06, Elguindy v. Elguindy, 2020 ONCA 739, Antique Treasures of the World Inc. v. Bauer, 2003 CanLII 35349 (Ont. C.A.), Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

Bobel v. Humecka, 2021 ONCA 757

Keywords: Civil Procedure, Appeals, Extension of Time, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131

Kerner v. Information Builders (Canada) Inc., 2021 ONCA 756

Keywords: Employment, Wrongful Dismissal, Damages, Holland v. Hostopia.Com Inc., 2015 ONCA 762

N. v. F., 2021 ONCA 766

Keywords: Costs

CIVIL DECISIONS

Bodnar v. Boban Estate, 2021 ONCA 746

[Strathy C.J.O., Zarnett J.A. and Wilton-Siegal J. (ad hoc)]

COUNSEL:

M. Cupello, for the appellant
N.J. Gerry, for the respondent

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Defences, Laches, Civil Procedure, Summary Judgment, Issue Estoppel, Cause of Action Estoppel, Abuse of Process, Appeals, New Issues on Appeal, Statute of Frauds, R.S.O. 1990, c. S.19, Kaiman v. Graham, 2009 ONCA 77, Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, Ross v. Ross (1999), 1999 NSCA 162 (CanLII), 181 N.S.R. (2d) 22 (C.A.)

FACTS:

In 1991, P.B. loaned the appellant $86,933 subject to 14% interest secured by a mortgage against the appellant's house. The mortgage contemplated monthly payments fixed at $1,100 and was payable on the second anniversary. It was not repaid on that date and remained outstanding. P.B. passed away in 1997. The respondent, P.B.'s estate, asserted that the terms of the original mortgage were extended unamended every three years commencing in 1993.

The appellant alleged that P.B. had agreed that the mortgage would be renewed every three years at an interest rate of prime plus 4%. She also alleged that the respondent agreed to an increase in monthly payments to $1,600 in consideration of continuation of the alleged interest rate of prime plus 4%.

In 2017, the appellant sold the home. In 2018, the appellant commenced an action seeking a declaration that the mortgage had been paid in full and that she was entitled to the proceeds of the sale of house. The respondent alleged that the mortgage remained outstanding and counterclaimed for the amount it calculated to be outstanding plus continuing interest at 14%.

In 2020, summary...