Court Of Appeal Summaries (March 14, 2022 ' March 18, 2022)

• Published date: 23 March 2022
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Financial Restructuring, Corporate and Company Law, Insolvency/Bankruptcy, Retirement, Superannuation & Pensions, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Libel & Defamation, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 14, 2022.

Topics covered this week included property of a bankrupt (beneficial interest in trust property), testamentary capacity and extensions of time to perfect appeals.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Richards (Re), 2022 ONCA 216

Keywords: Bankruptcy and Insolvency, Property of the Bankrupt, Trusts, Interpretation, Anti-Deprivation Rule, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 38, s. 67(1)(c), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020 SCC 25

Hategan v. Frederiksen, 2022 ONCA 217

Keywords: Torts, Defamation, Injurious Falsehood, Wrongful Appropriation of Personality, Civil Conspiracy, Negligence, Unlawful Interference with Economic Interests, Civil Procedure, Appeals, Perfection, Extension of Time, Summary Judgment, Injunctions, Rules of Civil Procedure, Rule 61.09(1)(a), r. 61.13 (2.1), Libel and Slander Act, R.S.O. 1990, c. L.12, Hryniak v. Mauldin, 2014 SCC 7, Issasi v. Rosenzweig, 2011 ONCA 112, Lysko v. Braley (2006), 79 O.R. (3d) 721 (CA), Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504, A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, Zhong v. Wu, 2019 ONSC 7088, Rainy River (Town) v. Olsen, 2017 ONCA 605, 6 C.P.C. (8th) 1, Bobel v. Humecka, 2021 ONCA 757

Leonard v. Zychowicz, 2022 ONCA 212

Keywords: Wills and Estates, Capacity, Undue Influence, Suspicious Circumstances, Civil Procedure, Costs, Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.), Vout v. Hay, [1995] 2 S.C.R. 876, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, Housen v. Nikolaisen, 2002 SCC 33, Wilton v. Koestlmaier, 2019 BCCA 262, McGrath v. Joy, 2022 ONCA 119, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Oliveira v. Oliveira, 2022 ONCA 218

Keywords: Civil Procedure, Appeals, Extension of Time, Contempt, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7, Rules of Civil Procedure, Rule 3.02(1), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 2363523 Ontario Inc. v. Nowack, 2018 ONCA 286, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.), Denomme v. McArthur, 2013 ONCA 694, 36 R.F.L. (7th) 273, Leighton v. Best, 2014 ONCA 667, Carey v. Laiken, 2015 SCC 17, Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951

Short Civil Decisions

Currie v. Nylene Canada Inc., 2022 ONCA 209

Keywords: Employment Law, Wrongful Dismissal, Reasonable Notice, Break in Service, Pension, Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), Lowndes v. Summit Ford Sales Ltd. (2006), 206 O.A.C. 55 (C.A), Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512

1750738 Ontario Inc. c. 1750714 Ontario Inc., 2022 ONCA 215

Keywords: Contracts, Oral Agreements, Essential Terms, Specific Performance, Civil Procedure, Costs, Courts of Justice Act, RSO 1990, c. C.43, ss. 131(1), Rules of Civil Procedure, Rule 57.01(1), TransCanada Pipelines Ltd. v. Potter Station Power Ltd. Partnership , (2002), 20 CPC (5th) 382 (SCJ), City Front Developments Inc. c. Toronto District School Board (2007), 285 DLR (4th)), Loretto v. Little (costs), 2010 ONSC 5993, Boucher c. Accountants Council of the Province of Ontario (2004), 71 OR (3d) 291

Daly v. NYX Tannery Ltd., 2022 ONCA 213

Keywords: Civil Procedure, Amending Pleadings, Appeals, Jurisdiction, Final or Interlocutory, Costs, Courts of Justice Act, R.S.O. 1990, c. C. 34, ss.19(1)(c), 19(1.2)(a), 133(b)

Caja Paraguyaya De Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Obregon, 2022 ONCA 225

Keywords: Civil Procedure, Injunctions, Non-Dissipation Orders, Contempt, Caja Paraguaya de Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Garcia, 2018 ONSC 5379

11534599 Canada Corp. v. Hume, 2022 ONCA 224

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Appeals

CIVIL DECISIONS

Richards (Re), 2022 ONCA 216

[van Rensburg, Nordheimer and Harvison Young JJ.A.]

COUNSEL:

I. J. Klaiman, for the appellant, M. P. R.

C. Francis, for the respondent, Royal Bank of Canada

Keywords:Bankruptcy and Insolvency, Property of the Bankrupt, Trusts, Interpretation, Anti-Deprivation Rule, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 38, s. 67(1)(c), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chandos Construction Ltd. v. Deloitte Restructuring Inc., 2020 SCC 25

FACTS:

The appellant appealed from the order of the bankruptcy judge that involved the interpretation of a trust of which he was the beneficiary (the "Trust").

The appellant was an undischarged bankrupt. Royal Bank of Canada ("RBC") had an outstanding judgment against him for $987,613 plus costs and interest. On September 16, 2019, RBC filed a bankruptcy application against the appellant, which was issued the same day.

The appellant was the beneficiary of a property (the "Property") pursuant to a Trust that was settled by his father in 2001. The Trust was set up to hold the Property during the lives of the appellant's parents, with a life interest permitting them to live in the Property. The appellant's father, George, died in 2010. His mother, Patricia, continued to live in the Property. She died in July 2020. According to the terms of the Trust, the date of death of the second of the appellant's parents is called the "Time of Division".

At the Time of Division, the trustees were required to distribute the Trust Fund (including the Property and any Chattels) to the appellant, if he was then alive.
Prior to Patricia's death, the trustees of the Trust sold the Property. The proceeds of sale ($1,172,120.90) were being held in trust.

In October 2020, RBC obtained an order under s. 38 of the Bankruptcy and Insolvency Act ("BIA"), taking an assignment of rights of the appellant's Trustee in Bankruptcy to make a claim against the sale proceeds of the Property. The Bankruptcy Trustee had not wanted to pursue the claim due to lack of funding. RBC now stands in the shoes of the Bankruptcy Trustee with respect to the sale proceeds of the Property.

RBC brought a motion to recover the sale proceeds up to the amount owing to RBC. It sought a declaration that the appellant was the beneficiary of the Trust and had an interest in the Property under the terms of the Trust. RBC argued that the sale proceeds constituted property of the bankrupt, pursuant to the broad definition in s. 67(1)(c) of the BIA, which vested in his Bankruptcy Trustee and formed part of his bankrupt estate.
The appellant responded that his interest in the Property was suspended while he was a bankrupt, pursuant to the provisions of s. 4.2 of the Trust.

ISSUES:

(1) Did the appellant's interest in the Property not vest in his Bankruptcy Trustee until such time as he was discharged...