Court Of Appeal Summaries (September 27 ' October 1)

• Published date: 05 October 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Privacy, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Family Law, Insurance Laws and Products, Privacy Protection, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Real Estate, Civil Law
• 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 27, 2021.

In Li v. Li, the court reviewed a motion judge's conclusion that Ontario had jurisdiction to hear the parties' family law dispute. In allowing the appeal, the court found that while Ontario did have jurisdiction, Yunnan Province, China was the clearly more appropriate forum, and that the motion judge erred in their analysis of forum non conveniens. The Ontario application was therefore stayed.

Other topics covered included standing to oppose the validity of a will, custody and access, renewal of a commercial lease, injunctions in the condominium context, intrusion upon seclusion and wrongful dismissal, mortgage enforcement and bank negligence, 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 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.

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 had the privileged and honour to co-author two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

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

Li v. Li, 2021 ONCA 669

Keywords: Family law, Property, Equalization of Net Family Property, Domestic Contracts, Setting Aside, Civil Procedure, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, s. 15, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14

Wakeling v. Desjardins General Insurance, 2021 ONCA 672

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Breach of Confidence, Contracts, Duty of Good Faith, Remedies, Punitive Damages, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Standard of Review, Correctness, Employment law, Wrongful Dismissal, Human Rights law, Discrimination, Human Rights Code, R.S.O. 1990, c. H. 19, ss 1, 46.1(2), Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Jones v. Tsige, 2012 ONCA 32, Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co., (2002), 61 O.R. (3d) 481 (Ont. C.A.), Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, McCreight v. Canada (Attorney General), 2013 ONCA 483, Mortazavi v. University of Toronto, 2013 ONCA 655, Jaffer v. York University, 2010 ONCA 654, Knight v. Surrey Place Centre, 2017 HRTO 281, 02535 Ontario Inc. v. Non-Marine Underwriters Lloyd's London England (2000), 184 D.L.R. (4th) 687 (Ont. C.A.), Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, Brandiferri v. Wawanesa Mutual Insurance, et al., 2012 ONSC 2206, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, Barata v. Intact Insurance Company, 2021 ABQB 419, Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286

Perodeau v. TD Canada Trust, 2021 ONCA 670

Keywords: Contracts, Real Property, Mortgages, Enforcement, Insurance, Termination, Torts, Negligence, Breach of Fiduciary Duty, Civil Procedure, Summary Judgment, Res Judicata, Parties Under Disability, Rules of Civil Procedure, Rules 1.03(1), and 7.01, Christie v. British Columbia (Attorney General), 2007 SCC 21, Costantino v. Costantino, 2016 ONSC 7279, Sosnowski v. Johnson, [2006] O.J. No. 3731 (Ont. C.A.)

Khairzad v. Erroussa, 2021 ONCA 667

Keywords: Family Law, Custody and Access, Decision-Making, Parenting Time, Child Support, Imputed Income, Variation, Material Change in Circumstances, Fresh Evidence, Civil Procedure, Disclosure, Costs, Child Support Guidelines, Hickey v. Hickey, [1999] 2 S.C.R. 518, Van de Perre v. Edwards, 2001 SCC 60, R.F. v. J.W., 2021 ONCA 528, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300

Ottawa-Carleton Standard Condominium Corporation No.671 v. Friend, 2021 ONCA 666

Keywords: Real Property, Condominiums, Equitable Remedies, Permanent Injunctions, Civil Procedure, Applications, Condominium Act, 1998, S.O. 1998, c.19, ss. 117, 134, Rules of Civil Procedure, Rule 14.05(2)

LMC 477R Corp. v. Metropolitan Toronto Condominium Corporation No. 1046, 2021 ONCA 677

Keywords: Real Property, Condominiums, Oppression, Duty of Good Faith, Contracts, Duty of Good Faith Negotiations, Condominium Act, 1998, S.O. 1998, c. 19, s 135, 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, Metropolitan Toronto Condominium Corporation No. 1272 v. Beach Development (Phase II) Corporation, 2011 ONCA 667, Welton v. United Lands Corporation Limited, 2020 ONCA 322, Manastersky v. Royal Bank of Canada, 2019 ONCA 609, R. v. R.E.M., 2008 SCC 51

Moses v. Moses, 2021 ONCA 662

Keywords: Wills and Estates, Invalidity, Undue Influence, Estates Act, R.S.O. 1990, c. E.21, s. 23, Rules of Civil Procedure, Rule 75.06(1), Adams Estate v. Wilson, 2020 SKCA 38

Narwhal International Limited v. Teda International Realty Inc., 2021 ONCA 659

Keywords: Contracts, Real Property, Commercial Leases, Duty of Good Faith, Civil Procedure, Evidence, Credibility, Godson v. P. Burns & Co. (1919), 46 D.L.R. 97 (S.C.C.), Molson Canada 2005 v. Miller Brewing Company, 2013 ONSC 2758, R. v. Palmer, [1980] 1 S.C.R. 759. Longo v. MacLaren Art Centre, 2014 ONCA 526, 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843

Short Civil Decisions

Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 646

Keywords: Civil Procedure, Costs

CIVIL DECISIONS

Li v. Li, 2021 ONCA 669

[Feldman, Paciocco and Coroza JJ.A.]

COUNSEL:

H. (Pandora) Du, for the appellant
M. J. Stangarone and S. P. Kirby, for the respondent

Keywords: Family law, Property, Equalization of Net Family Property, Domestic Contracts, Setting Aside, Civil Procedure, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Family Law Act, R.S.O. 1990, c. F.3, s. 15, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14

FACTS:

The appellant appeals from the dismissal of a motion in which they sought an order dismissing, on jurisdictional grounds, the respondent's application for relief arising from the breakdown of their marriage.

On the motion, the appellant argued that Ontario lacked jurisdiction to hear the application and that, in the alternative, the city of Kunming, in the province of Yunnan, People's Republic of China was the more appropriate forum for the dispute. The motion judge rejected both arguments and concluded Ontario had jurisdiction.

ISSUES:

(1) Is there a real and substantial connection between the parties, the matrimonial claims being litigated, and Ontario?

(2) Is Yunnan Province, China the more appropriate forum to determine the claims raised in the respondent's Application?

(3) Should the Court strike out all or part of the respondent's Application, leaving only the trust claims concerning the Bevdale Property to proceed in Ontario?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

Absent palpable and overriding error or an extricable error of law warranting correctness review, deference ought to be afforded to the motion judge. In the Court's view, the appellant did not identify any extricable errors of law or palpable and overriding error in the motion judge's analysis on the question of whether Ontario had jurisdiction.

The motion judge correctly relied on evidence presented by the respondent indicating he was a Canadian citizen and lived at the Canadian address listed on his passport and driver's license to establish the respondent resided primarily in Canada. The "real home" or "ordinary residence" of a party should be a presumptive connecting factor, and therefore, the respondent's ordinary place of residence was a significant factor to consider.

The respondent also had property in Ontario, another presumptive connecting factor. A single presumptive connecting factor, absent any rebuttal, is sufficient to establish jurisdiction under the Van Breda analysis. Therefore, the Court deferred to the motion judge's conclusion that there was a sufficient connection to Ontario.

(2) Yes.

The motion judge erred...