Court Of Appeal Summaries (November 15-19, 2021)

• Published date: 24 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are this week's summaries of the civil decisions of the Ontario Court of Appeal for the week of November 15, 2021.

In Grand River Conservation Authority v. Ramdas, a case in which injunctions were granted to prohibit improvements to a property without permits, Justice Lauwers made some observations surrounding self-represented litigants. First, Justice Lauwers called upon judges to not only rely on counsel for a clear understanding of where things stand in the litigation, but to permit self-represented parties to explain how they understand the status quo, in order to avoid any impression of favouritism or bias. Second, he cautioned judges about the confusion self-represented litigants may experience when understanding the difference between evidence and submissions. Finally, Justice Lauwers reminded opposing counsel of their obligations to assist both self-represented litigants and the court to ensure that justice is not only done, but is seen to be done.

Other topics covered this week included the enforcement of a fence bylaw, whether a refusal to issue a certificate of pending litigation is an interlocutory or final order, fraudulent conveyances and vexatious litigants.

I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. 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. I had the privileged of co-writing two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference).

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 would encourage all of our readers to consult CPPO in their daily practice, to spread the word among colleagues, and to provide any feedback they may have.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Syrowik v. Wheeler, 2021 ONCA 819

Keywords: Administrative Law, Municipal Law, By-laws, Enforcement, Municipal Act, 2001, S.O. 2001, c. 25, s. 440, Wheeler v. Syrowik, 2017 ONSC 2901

Grand River Conservation Authority v. Ramdas, 2021 ONCA 815

Keywords: Municipal Law, Civil Procedure, Self-Represented Litigants, Injunctions, Adjournment, Conservation Authorities Act, Rules of Professional Conduct, Model Code of Professional Conduct, Canadian Code of Conduct for Trial Lawyers Involved in Civil Actions Involving Unrepresented Litigants, Irvine: American College of Trial Lawyers, 2009, Dhatt v. Beer, 2021 ONCA 137, Khimji v. Dhanani (2004), 69 O.R. (3d) 790 (C.A.), Pintea v. Johns, 2017 SCC 23, Johansson v. Janssen, 2021 BCCA 190, 50 B.C.L.R. (6th) 122, Gardaworld Cash Services Canada Corporation v. Smith, 2020 FC 1108, Malton v. Attia, 2016 ABCA 130, 35 Alta. L.R. (6th) 27, Girao v. Cunningham, 2020 ONCA 260

1388020 Ontario Corp. v. Machnowski, 2021 ONCA 806

Keywords: Civil Procedure, Settlements, Enforcement, Summary Judgement

Lee v. Singh, 2021 ONCA 829

Keywords: Contracts, Real Property, Civil Procedure, Orders, Enforcement, Striking Pleadings, Default Judgment, Setting Aside

Ebrahimpour v. Askari, 2021 ONCA 830

Keywords: Promissory Note, Caution, Constructive Trust, Equitable Charge, Certificate of Pending Litigation, Duress, Coercion, Rules of Civil Procedure, Taber v. Paris Boutique & Bridal Inc., 2010 ONCA 157, Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475

Ball Media Corporation v. Imola, 2021 ONCA 833

Keywords: Torts, Fraud, Conversion, Property, Fraudulent Conveyances, Resulting Trust, Civil Procedure, Summary Judgment, Family Law Act, s. 14

1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

Keywords: Civil Procedure, Orders, Costs, Enforcement, Fraudulent Conveyances, Certificates of Pending Litigation, Appeals, Jurisdiction, Final or Interlocutory, Summary Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b), 13, 18m 19(1)(a), 19(1.2), 134(2), Rules of Civil Procedure, Rule 62.02(4), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Archer v. Archer (1975), 11 O.R. (2d) 432 (C.A.), Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, 561895 Ontario Ltd. v. Metropolitan Trust Co. of Canada (1997), 14 C.P.C. (4th) 195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997), Skunk v. Ketash, 2016 ONCA 841, Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839

Stewart v. Fuhgeh, 2021 ONCA 824

Keywords: Civil Procedure, Vexatious Litigants, Intervenors, Leave to Appeal, Canadian Charter of Rights and Freedoms, Rules of Civil Procedure, Rule 2.1, Fuhgeh v. Stewart, 2021 ONSC 3053, Simpson v. Chartered Professional Accountants of Ontario, 2016 ONCA 806

Short Civil Decisions

Cao v. Markham (City), 2021 ONCA 818

Keywords: Torts, Defamation, Dereliction of Duty, Racial Discrimination, Civil Procedure, Issue Estoppel, Evidence

Royal Bank of Canada v. Mundo Media Ltd., 2021 ONCA 832

Keywords: Bankruptcy and Insolvency, Receiverships, Equitable Set-Off

CIVIL DECISIONS

Syrowik v. Wheeler, 2021 ONCA 819

[MacPherson, Simmons and Nordheimer JJ.A.]

Counsel:

A. Baroudi, for the appellants

D. M. Sanders, for the respondents

Keywords: Administrative Law, Municipal Law, By-laws, Enforcement, Municipal Act, 2001, S.O. 2001, c. 25, s. 440, Wheeler v. Syrowik, 2017 ONSC 2901

facts:

The appellants and the respondents own neighbouring cottages in the Municipality of Lambton Shores (the "Municipality") on Lake Huron. In 2015, the respondents built a privacy fence (the "Fence") that runs parallel to the east wall of their cottage and their eastern property line, which divides their land from the appellants' land. The Fence sits adjacent to the respondents' cottage and runs beyond their cottage towards the lake.

The appellants contended that the Fence was to high and violated the Fence By-law of the Municipality. Accordingly, in April 2018, the appellants complained to the Municipality. By email dated may 25, 2018, the Municipality indicated it had considered the complaint, and although it believed the end of the Fence closest to the lake violated a 6.5 feet height restriction in the Fence By-law, it indicated it would not be conducting any further investigation with respect to the alleged violation based on all the circumstances.

Subsequently, the appellants brought an application to enforce the Fence By-law under s. 440 of the Municipal Act. Although the application judge assumed for the purposes of the application that the Fence was "probably higher than the Municipality permits", he nonetheless declined to make an order that the respondents remove or lower the Fence. The application judge found the Municipality had looked into and declined to enforce the Fence By-law for articulable reasons. Further, given that the Municipality had not acted unreasonably or in bad faith, he saw no basis on which to intervene and grant the relief requested.

The appellants appealed from the application judge's decision.

issues:

(1) Did the application judge err in concluding that in order to succeed on an application to enforce a by-law under s. 440 of the Municipal Act, where a municipality has declined to do so, a taxpayer is...