Court Of Appeal Summaries (April 11 ' 14, 2022)

• Published date: 19 April 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Family Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Professional Negligence, White Collar Crime, Anti-Corruption & Fraud, Civil Law, Divorce
• 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 April 11, 2022.

Topics covered this week included a claim to professional fees charged for litigation support in a family law case, police liability for false arrest, negligent investigation and malicious prosecution, adding parties in a MVA/road maintenance case, and summary judgment dismissing claims as an abuse of process because they raised issues already dealt with in prior proceedings that had been settled.

Wishing everyone celebrating a Happy Easter and Passover.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Marmer Penner Inc. v. Vacaru, 2022 ONCA 280

Keywords: Contracts, Debtor-Creditor, Professional Fees, Solicitor's Negligence, Civil Procedure, Appeals, Fresh Evidence, R. v. O'Brien, [1978] 1 S.C.R. 591

Hall v. Niagara (Police Services Board), 2022 ONCA 288

Keywords: Torts, Police Liability, False Arrest, Negligent Investigation, Malicious Prosecution, Civil Procedure, Costs, Criminal Code, R.S.C. 1985, c. C-46, s. 463(d), Rules of Civil Procedure, Rule 57.01, Nelles v. Ontario, [1989] 2 S.C.R. 170, R. v. Storrey, [1990] 1 S.C.R. 241, R. v. Shepherd, 2009 SCC 35, Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Taylor v. Mayes, 2022 ONCA 297

Keywords: Torts, Negligence, MVA, Crown Liability, Road Maintenance, Civil Procedure, Adding Parties, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, Azzeh (Litigation Guardian of) v. Legendre, 2017 ONCA 385

Ntakos Estate v. Ntakos, 2022 ONCA 301

Keywords: Contracts, Settlements, Releases, Rescission, Fraud, Civil Procedure, Abuse of Process, Summary Judgement, Limitation Periods, Fraudulent Concealement, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the Trustee Act, R.S.O. 1990, c. T.23, Rules of Civil Procedure, Rule 20.04(2.2), Ntakos Estate v. The Queen, 2012 TCC 409, Ntakos Estate v. The Queen, 2018 TCC 224, York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, 84 O.R. (3d) 414, leave to appeal to S.C.C. refused, 31950 (September 6, 2007), Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, leave to appeal refused, [2019] S.C.C.A. No. 91, Housen v. Nikolaisen, 2002 SCC 33, Hryniak v. Mauldin, 2014 SCC 7, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, leave to appeal refused, [2019] S.C.C.A. No. 284; Behn v. Moulton Contracting Ltd., 2013 SCC 26, Winter v. Sherman Estate, 2018 ONCA 703, leave to appeal to S.C.C. refused, 38899 (March 19, 2020), D'Addario v. EnGlobe Corp., 2012 ONSC 1918, aff'd 2014 ONCA 376, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), rev'd for the reasons of Goudge J.A., 2002 SCC 63, 790668 Ontario Inc. v. D'Andrea Management Inc., 2015 ONCA 557

Short Civil Decisions

1116227 Ontario Ltd. v. Telus Communication Company, 2022 ONCA 287

Keywords: Civil Procedure, Dismissal for Delay, Costs, Rules of Civil Procedure, Rules 48.14(1), 48.14(5), and 48.14(6), Faris v. Eftimovski, 2013 ONCA 360

Hornepayne First Nation v. Ontario First Nations (2008) Limited Partnership, 2022 ONCA 299

Keywords: Civil Procedure, Leave to Appeal, Costs, Arbitration Act, 1991, S.O. 1991, c. 17, s. 49, Rules of Civil Procedure, Rule 61.03.1(3)

Grillo Barristers P.C. v. Kagan Law Firm P.C., 2022 ONCA 303

Keywords: Civil Procedure, Orders, Dismissal for Delay, Setting Aside, Costs, Reid v. Dow Corning Corp. (2002), 48 C.P.C. (5th) 93 (Ont. S.C.)

Collins v. Canada Post Corporation, 2022 ONCA 295

Keywords: Civil Procedure, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, Wilson v. The Queen, [1983] 2 S.C.R. 594

CIVIL DECISIONS

Marmer Penner Inc. v. Vacaru, 2022 ONCA 280

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

F. V., self-represented as the appellant

T. Pagliaroli, for the respondents Legge & Legge and J.L.

M. E. Girard, for the respondent, Marmer Penner Inc.

Keywords: Contracts, Debtor-Creditor, Professional Fees, Solicitor's Negligence, Civil Procedure, Appeals, Fresh Evidence, R. v. O'Brien, [1978] 1 S.C.R. 591

facts:

The respondent, J.L. and his law firm Legge & Legge ("Legge"), acted for the appellant, F.V., in her divorce proceedings. The respondent, Marmer Penner Inc. ("Marmer"), was retained to provide forensic accounting advice during the divorce proceedings. F.V. paid substantial fees to Marmer but not all of the fees claimed. Marmer sued F.V. for the outstanding balance and sued Legge on the basis that counsel had given Marmer a personal undertaking to honour the fees. F.V. defended on the basis that there was an oral agreement that Marmer would limit its fees to a specified amount and that in any event, Marmer had overcharged for some of the services provided. F.V. also counterclaimed alleging negligence by Marmer. Additionally, F.V. crossclaimed against her co-defendant, Legge, alleging negligence by Legge in the course of the divorce proceedings and maintained that proper steps to prevent her husband from dissipating his assets during the proceedings. The negligence allegations focused on one specific property owned by the husband and his girlfriend and events in early June 2018.

Marmer was successful in the main action and was granted judgment against F.V. and Legge. F.V. abandoned her counterclaim against Marmer on the eve of the trial. The trial judge also dismissed F.V.'s crossclaim against Legge. The trial judge found the crossclaim failed for several reasons. He held F.V. failed to prove Legge breached the applicable standard of care and also failed to prove any causal link between Legge's alleged negligence and F.V.'s damages. The trial judge further held that F.V.'s claim was statute-barred.

F.V. appealed the judgment in the main action and the judgment dismissing her crossclaim. She also sought leave to appeal the costs awarded to Marmer. F.V. also brought a motion to adduce fresh evidence on the appeal. The fresh evidence related to both the appeal in the main action and the appeal from the dismissal of the crossclaim.

issues:

(1) Can the court accept fresh evidence consisting of Legge's discovery evidence attached on the main action?

(2) Can the court accept fresh evidence on the appeal in the crossclaim consisting of emails from two former employees of Legge and two opinion letters from a person identified as a "court qualified, certified questioned document examiner"?

(3) Did the trial judge err in finding that Marmer did not in fact agree to a fixed fee for its services prior to trial, and did not overcharge or double-bill F.V.?

(4) Did the trial judge fail to ensure that they had access to the written version of the agreement between Legge and Marmer concerning Legge's position in the main action?

(5) Can the court consider F.V.'s argument Legge was negligent in failing to register a temporary non-depletion order made by Justice Jarvis in respect of the husband's property?

(6) Should the appellant be granted leave to appeal the costs order made in the main action?

holding:

Appeals and motions dismissed.

reasoning:

(1) No.

There was no basis upon which it could reasonably be said that...