Court Of Appeal Summaries (April 4, 2022 ' April 8, 2022)

• Published date: 11 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Tax, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, Professional Negligence, Libel & Defamation, Landlord & Tenant - Leases, Income Tax, 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 April 4, 2022.

Topics covered this week included striking pleadings as disclosing no reasonable cause of action against CRA to recover the costs and interest incurred in respect of a successful tax appeal, a landlord's refusal to consent to an assignment of a lease, adverse possession, family law (variation of support and parenting) and security for costs in a defamation case.

Table of Contents

Civil Decisions

Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc., 2022 ONCA 272

Keywords: Contracts, Real Property, Commercial Leases, Assignments, Landlord's Consent, Reasonableness, 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Royal Bank of Canada v. Oxford Medical Inc., 2019 ONSC 1020, Royal Bank cites St. Jane Plaza Ltd. v. Sunoco Inc. (1992), 24 R.P.R. (2d) 161 (Ont. C.J. (Gen. Div.)), 1497777 Ontario Inc. v. Leon's Furniture Ltd. (2003), 176 O.A.C. 380 (C.A.), Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd. (1989), 59 D.L.R. (4th) 1 (B.C. C.A.), Tradedge Inc. (Shoeless Joe's) v. Tri-Novo Group Inc., 2007 ONCA 562, Federal Business Development Bank v. Starr (1986), 28 D.L.R. (4th) 582, No. 1 West India Quay (Residential) Ltd. v. East Tower Apartments Ltd., [2018] EWCA Civ 250

Billimoria v. Mistry , 2022 ONCA 276

Keywords: Real Property, Adverse Possession, Partition and Sale, Civil Procedure, Appeals, New Issue on Appeal, Real Property Limitations Act, RSO 1990, c L15, ss. 4, 5 and 15, Land Titles Act, RSO 1990, c L5, s. 51, Partition Act, RSO 1990, c P4, s. 2, Cavanaugh v. Grenville Christian College, 2013 ONCA 139, Housen v. Nikolaisen, 2002 SCC 33, H.L. v. Canada (Attorney General), 2005 SCC 25, Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, Kaiman v. Graham, 2009 ONCA 77, Vivekanandan v. Terzian, 2020 ONCA 110, Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), Brienza v. Brienza, 2014 ONSC 6942

Vale v. Vale, 2022 ONCA 278

Keywords: Family Law, Child Support, Variation, Civil Procedure, Orders, Interim or Final, Costs, Federal Child Support Guidelines, SOR/97-175 section 7, 3(1) and 10, Family Law Act, R.S.O. 1990, c. F.3 section 35, 37, 39.1, 56(1), Bouchard v. Sgovio, 2021 ONCA 709

Jayco Inc. v. Canada (Revenue Agency) , 2022 ONCA 277

Keywords: Tax Law, Torts, Crown Liability, Negligence, Duty of Care, Remoteness, Public Policy Considerations, Agency Law, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Appeals, Standard of Review, Correctness, Rules of Civil Procedure, Rule 21.1(1)(b), Excise Tax Act, R.S.C., 1985, c. E-15, s. 221(1), Income Tax Act, R.S.C., 1985, c. 1, Quebec (Revenue) v. Caisse populaire Desjardins de Montmagny, 2009 SCC 49, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Reference re Goods and Services Tax, [1992] 2 S.C.R. 445, Re Statutes of Manitoba relating to Education (1894), 22 S.C.R. 577, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, Reference re Broome v. Prince Edward Island, 2010 SCC 11, Eliopoulos v. Ontario (Minister of Health & Long Term Care) (2006), 82 O.R. (3d) 321 (Ont. C.A.), River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326, McCreight v. Canada (Attorney General), 2013 ONCA 483, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Leroux v. Canada Revenue Agency, 2012 BCCA 63, Grenon v. Canada Revenue Agency, 2017 ABCA 96, Odhavji Estate v. Woodhouse, 2003 SCC 69

A.C.V.P. v. A.M.P., 2022 ONCA 283

Keywords: Family Law, Decision Making, Parenting, Best Interests of the Child, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 30, Palmer v. The Queen, [1980] 1 S.C.R. 759, Goldman v. Kudelya, 2017 ONCA 300, Children's Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), S. v. M.S., 2010 ONCA 196, Van de Perre v. Edwards, 2001 SCC 60, V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319, (Ont. S.C.), Merkand v. Merkand, 2006 CanLII 3888 (Ont. C.A.), leave to appeal refused, [2006] S.C.C.A. No. 117, Young v. Young, 2013 ONSC 4423, Kucan v. Santos, 2017 ONSC 6725, Children's Aid Society of London and Middlesex v. B.(C.C.), 2007 CanLII 66699 (Ont. S.C.), Glick v. Cale, 2013 ONSC 893, A.A. v. D.S., 2022 ONSC 1389, Kramer v. Kramer (2003), 37 R.F.L. (5th) 381 (Ont. S.C.), Parniak v. Carter (2002), 30 R.F.L. (5th) 381 (Ont. C.J.); Glance v. Glance (2000), 10 R.F.L. (5th) 276 (Ont. S.C.)

Lavallee v. Isak, 2022 ONCA 290

Keywords: Torts, Defamation, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rules 61.06(1)(a) and (c), Grant v. Torstar, 2009 SCC 61, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Schmidt v. Toronto Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), Pickard v. London Police Services Board, 2010 ONCA 643, York University v. Markicevic, 2017 ONCA 651, Henderson v. Wright, 2016 ONCA 89, Heidari v. Naghshbandi, 2020 ONCA 757

Short Civil Decisions

Marshall v. Meirik, 2022 ONCA 275

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Mitigation, Civil Procedure, Costs

X.H. v. Cota, 2022 ONCA 274

Keywords: Torts, Negligence, Civil Procedure, Summary Judgment, Striking Pleadings, Limitation Periods, Limitations Act, 2002, S.O. 2002 c. 24, Sch. B., s. 16, Jane Doe v. Weinstein, 2018 ONSC 1126

Goguen v. Baptiste, 2022 ONCA 284

Keywords: Civil Procedure, Mareva Injunctions, Jurisdiction, Chevron Corp. v. Yaiguaje, 2015 SCC 42

Rieder zu Wallburg v. Plista Gmbh, 2022 ONCA 281

Keywords: Contracts, Civil Procedure, Jurisdiction, Forum Non Conveniens, Costs, Club Resorts Ltd. v. Van Breda, 2012 SCC 17

CIVIL DECISIONS

Tabriz Persian Cuisine Inc. v. Highrise Property Group Inc., 2022 ONCA 272

[Feldman, MacPherson and Lauwers JJ.A.]

Counsel:

E. Mehrabi, for the appellant

A. Assuras, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Assignments, Landlord's Consent, Reasonableness, 1455202 Ontario Inc. v. Welbow Holdings Ltd. (2003), 33 B.L.R. (3d) 163 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Royal Bank of Canada v. Oxford Medical Inc., 2019 ONSC 1020, Royal Bank cites St. Jane Plaza Ltd. v. Sunoco Inc. (1992), 24 R.P.R. (2d) 161 (Ont. C.J. (Gen. Div.)), 1497777 Ontario Inc. v. Leon's Furniture Ltd. (2003), 176 O.A.C. 380 (C.A.), Lehndorff Canadian Pension Properties Ltd. v. Davis Management Ltd. (1989), 59 D.L.R. (4th) 1 (B.C. C.A.), Tradedge Inc. (Shoeless Joe's) v. Tri-Novo Group Inc., 2007 ONCA 562, Federal Business Development Bank v. Starr (1986), 28 D.L.R. (4th) 582, No. 1 West India Quay (Residential) Ltd. v. East Tower Apartments Ltd., [2018] EWCA Civ 250

facts:

This appeal centered on the reasonableness of a landlord's refusal to consent to a tenant's lease assignment.

The appellant, Tabriz Persian Cuisine Inc., owned a Persian restaurant in premises leased from the respondent, Highrise Property Group Inc. In 2018, the appellant decided to sell its business, and, on three occasions, tried to assign its lease. Section 10.01 of the lease prohibited the respondent from unreasonably withholding or delaying its consent, and stated it would not be unreasonable for the respondent to consider the proposed transfer's conformity with the lease, the assignee's business fundamentals, and the availability of other premises. The respondent refused to consent to the assignment of its lease unless the appellant removed a patio it had built on the condominium's property, and met a series of other conditions.

The appellant brought an action for damages after the third refusal. Akbarali J. found that the patio was the respondent's primary reason for the refusal, and that the appellant had not shown that the respondent acted unreasonably. The appellant had built the patio outside the leased premises without the respondent's consent. The appellant understood that the patio did not conform with the lease, and the respondent was merely insisting that the appellant restore the leased premises before it left. While, the respondent's insistence that the appellant discontinue its parallel lawsuit was not reasonable, this collateral purpose did not render the respondent's refusal unreasonable, viewed holistically.

issues:

(1) Did the trial judge err by finding that the respondent did not impose a pre-condition to considering the appellant's assignment request?

(2) Did the trial judge err by finding that the respondent's refusal to consent to the assignment was reasonable?

(3) Did the trial judge err by finding that the reasonable purpose saved the collateral purpose?

holding:

Appeal dismissed.

reasoning:

(1) No.

The landlord was not unreasonable in placing "preconditions" before considering the assignment of the lease. A landlord's refusal to consider an offer for a lease assignment is not unreasonable in itself. It is unreasonable if the court is unable to appreciate the reasons motivating the refusal. A landlord's silence is tantamount to an unreasonable refusal. The correspondence between the parties highlighted the basis of the landlord's refusal in palpable detail and allowed the trial judge to find that the patio was the only default "that really mattered".

(2) No.

Reasonableness is a question of fact, dependent on the surrounding circumstances, the commercial realities of the marketplace, and the economic impact of the assignment on the respondent. There was no basis to disturb the trial judge's analysis and conclusion on this issue.

The appellant's refusal to remove the patio had imposed economic loss on the respondent. This detriment was legitimately recognized as a...