Court Of Appeal Summaries (March 28, 2022 ' April 1, 2022)

Published date06 April 2022
Subject MatterLitigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Real Estate
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good afternoon.

These are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 28 to April 1, 2022.

In Georgian Properties Corporation v. Robins Appleby LLP, a condo corp alleged that condo disclosure prepared by the developer's lawyer was inadequate and refused to honour payment on a promissory note in favour of the developer. Almost a year later, the court found inadequate disclosure and that the debt under the promissory note oppressive and significantly reduced the amount payable. The developer sued its lawyers outside the two years from when the condo corp's allegations were first raised. The lawyers raised a limitation period defence. The Court did not accept the lawyers' position that the cause of action for negligence against them arose as soon as the condo corp had called the disclosure and debt instruments into question.

In Farej v. Fellows, a tragic medical malpractice case, the Court ordered a new trial because the trial judge's reasons on causation and standard of care were inadequate and did not permit of appellate review..

In Akelius Canada Ltd. v. 2436196 Ontario Inc., the Court confirmed that damages for breach of contract for failure to close on a real estate deal under an agreement of purchase and sale of land is the date of breach. Accordingly, if the purchaser was buying at market price, the vendor's failure to close leaves the purchaser with no damages, save for costs thrown away in respect to aborted deal. The vendor in this case, who sold the property two years later for $56 million more, was able to keep the entire extra profit. The lesson from this decision is that a vendor who has second thoughts and decides to keep their property faces little risk by refusing to close. The traditional availability of specific performance in real estate cases kept vendors honest. However, since Semelhago v. Paramadevan, 1996 CanLII 209 (SCC), the courts have gone away from awarding specific performance in real estate transactions without uniqueness. Uniqueness can be difficult to prove when the lands at issue are development lands that are essentially viewed as a commodity with readily available substitutes.

Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc. is a sale of goods case. The sale of topsoil was found to have been by description, and that the topsoil delivered did not conform to that description. Section 14 of the Sale of Goods Act imposes an implied condition that on a sale by description, the goods be of that description. A clause in the contract providing that if the purchaser failed to test the soil before accepting it, the vendor was not responsible for the quality of the goods. The motion judge viewed this clause as an exclusion clause that limited the vendor's liability. The purchaser's action was dismissed. The Court allowed the appeal. The exclusion clause did not contain explicit, clear and direct language sufficient to oust liability for breach of the implied condition in s. 14 of the Sale of Goods Act. The exclusion clause referred to the quality of the topsoil, not its identity or description. If the topsoil did not conform to the description required, the exclusion clause relating to quality had no application and could not save the vendor.

Other topics covered this week included the variation of child support and appellate jurisdiction (final or interlocutory).

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Georgian Properties Corporation v. Robins Appleby LLP, 2022 ONCA 245

Keywords: Contracts, Solicitor and Client, Torts, Solicitor's Negligence, Civil Procedure, Limitations Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(i) Condominium Act, 1998, S.O. 1998, c. 19, Central Trust v. Rafuse, [1986] 2 S.C.R. 147, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Kaynes v. BP p.l.c., 2021 ONCA 36, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165

Farej v. Fellows, 2022 ONCA 254

Keywords: Torts, Negligence, Medical Malpractice, Civil Procedure, Adequacy of Reasons, R. v. Sheppard, 2002 SCC 26, F.H. v. McDougall, 2008 SCC 53, R. v. G.F., 2021 SCC 20, Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, Dovbush v. Mouzitchka, 2016 ONCA 381, R. v. Morrissey (1995), 22 O.R. (3d) 514, R. v. Ramos, 2020 MBCA 111, Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520, Athey v. Leonati, [1996] 3 S.C.R. 458, Donleavy v. Ultramar Ltd., 2019 ONCA 687, ter Neuzen v. Korn, [1995] 3 S.C.R. 674

Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Vendor's Failure to Close, Damages, Civil Procedure, Summary Judgment, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), 100 Main Street Ltd. v. W.B. Sullivan Construction Ltd. (1978), 20 O.R. (2d) 401 (Ont CA), 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (Ont. CA), Asamera Oil Corporation Ltd. v. Sea Oil & General Corporation et al., [1979] 1 S.C.R. 633, Domowicz v. Orsa Investments Ltd. (1994), 20 O.R. (3d) 722 (Gen. Div.), Kipfinch Developments Ltd. v. Westwood Mall (Mississauga) Limited, 2010 ONCA 45, Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Bell Canada v. Olympia & York Developments Ltd., 111 D.L.R. (4th) 589 (Ont CA)

Pine Valley Enterprises Inc. v. Earthco Soil Mixtures Inc., 2022 ONCA 265

Keywords: Contracts, Interpretation, Sale of Goods, Implied Conditions, Sale by Description, Exclusion Clauses, Sale of Goods Act, R.S.O. 1990, c. S.1, ss 14 and 53, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Bakker v. Bowness Auto Parts Co. (1976), 68 D.L.R. (3d) 173 (Alta. S.C. (A.D.)), Ashington Piggeries Ltd. v. Christopher Hill Ltd., [1972] A.C. 441 (H.L. (Eng.)), Chabot v. Ford Motor Co. of Canada (1982), 39 O.R. (2d) 162 (H.C.), Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426, Gregorio v. Intrans-Corp. (1994), 18 O.R. (3d) 527 (C.A.), IPEX Inc. v. Lubrizol Advanced Materials Canada Inc., 2012 ONSC 2717, 4 B.L.R. (5th) 148, leave to appeal to Div. Ct. refused, 2012 ONSC 5382, Haliburton Forest & Wildlife Reserve Ltd. v. Toromont Industries Ltd., 2016 ONSC 3767

Overtveld v. Overtveld, 2022 ONCA 269

Keywords: Wills and Estates, Guardianship, Capacity, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Contempt, Striking Pleadings, Removal of Solicitor of Record, Solicitors Act, R.S.O. 1990, c. S.15, Chirico v. Szalas, 2016 ONCA 586, Simmonds v. Simmonds, 2013 ONCA 479, Hendrickson v. Kallio, [1932] O.R. 675, Aptowitzer v. Ontario (1995), 26 O.R. (2d) 254 (C.A.), Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103 (C.A.)

Licata v. Shure, 2022 ONCA 270

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 17, Family Law Rules, rules 14(10) and 25(1), Federal Child Support Guidelines, SOR/97-175, s. 14(b), Gray v. Rizzi, 2016 ONCA 152, Hickey v. Hickey, [1999] 2 S.C.R. 518, L.M.P. v. L.S., 2011 SCC 64, citing Willick v. Willick, [1994] 3 S.C.R. 670, Gordon v. Goertz, [1996] 2 S.C.R. 27, N.L. v. R.R.M., 2016 ONCA 915, Farden v. Farden (1993), 48 R.F.L. (3d) 60 (B.C. S.C.), Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), Dring v. Gheyle, 2018 BCCA 435, 430 D.L.R. (4th) 181, Olson v. Olson, 2003 ABCA 56, 225 D.L.R. (4th) 735, W.P.N. v. B.J.N., 2005 BCCA 7

Short Civil Decisions

Donovan v. Waterloo (Police Services Board), 2022 ONCA 261

Keywords: Labour Law, Human Rights, Civil Procedure, Appeals, Temporary Stay

Andrews v. Pattison, 2022 ONCA 267

Keywords: Torts, Negligence, Medical Malpractice, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Lawless v. Anderson, 2011 ONCA 102, Dass v. Kay, 2021 ONCA 565

CIVIL DECISIONS

Georgian Properties Corporation v. Robins Appleby LLP, 2022 ONCA 245

[Simmons, Pardu and Brown JJ.A.]

Counsel:

M. Davis and R. Davis, for the appellant

P. Wardle and E. Rankin, for the respondents

Keywords: Contracts, Solicitor and Client, Torts, Solicitor's Negligence, Civil Procedure, Limitations Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(i) Condominium Act, 1998, S.O. 1998, c. 19, Central Trust v. Rafuse, [1986] 2 S.C.R. 147, Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Kaynes v. BP p.l.c., 2021 ONCA 36, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851, Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165

facts:

The appellant, Georgian Properties Corporation ("Georgian Properties"), appealed from a summary judgment dismissing its negligence action against the respondent lawyers as statute barred under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the "Limitations Act").

The negligence claim arose from the respondent lawyers' work in preparing disclosure documents, two mortgages, and a promissory note for the developer of a condominium project that was registered in 2010. Once the condominium was turned over to the unit holders, the condominium corporation, TSCC 2051, refused to pay the two mortgages and the promissory note. Litigation ensued. TSCC 2051 attacked the adequacy of the disclosure documents in a factum delivered in June 2017. On July 7, 2017, a judge declined to strike the factum. In May 2018, she held that the disclosure documents were insufficient, the two mortgages and the promissory note were oppressive, and that the...

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