Court Of Appeal Summaries (February 7-11, 2022)

• Published date: 15 February 2022
• Subject Matter: Finance and Banking, Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Employee Benefits & Compensation, Insurance Laws and Products, Constitutional & Administrative Law, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon,

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 7 to 11, 2022.

The headline decision this week is the 47-page decision of Fresco v. Canadian Imperial Bank of Commerce, a class action involving over 30,000 CIBC employees. The Court upheld the motion judge's finding on motions for summary judgment that the bank breached the overtime provisions in the Canada Labour Code and that, therefore, liability to the class for overtime pay had been established. The Court also upheld the motion judge's decision to allow the issue of aggregate damages to be determined as a common issue, notwithstanding that the Court of Appeal had previously refused to certify aggregate damages as a common issue. Following the Supreme Court's decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation, which clarified/changed the law after the Court's initial decision not to certify aggregate damages in this case, the Court held that the ultimate decision lay with the trial judge, and that the Court's prior decision was not res judicata. Finally, the Court upheld the motion judge's decision to have the limitation period defences determined on an individual basis.

In Paddy-Cannon v. Canada (Attorney General), a historical abuse case, the Court overturned the trial judge's findings that the appellants were not reliable witnesses as a result of the passage of time. A new trial was ordered.

In Joy Estate v. McGrath, the Court held the application judge erred in finding that the deceased did not have testamentary capacity when he wrote a 2-page suicide note that the parties agreed met the requirements of a Holograph Will. The fact the deceased had consumed drugs and alcohol the day before was not sufficient to conclude that he lacked capacity. The Court also outlined the principles applicable to costs in the estates context. The traditional approach to costs in estate litigation is to have the parties' costs paid from the testator's estate. The public policy considerations for that approach include the need to give effect to valid wills that reflect the intention of competent testators and the need to ensure that estates are properly administered. Accordingly, if there are reasonable grounds on which to question the execution of a will or the testator's capacity to make the will, it is in the public interest that such questions be resolved without cost to those questioning the will's validity. And, where the difficulties or ambiguities that gave rise to the litigation are caused by the testator, it is again appropriate for the testator's estate to bear the costs of their resolution. When deciding costs in estate litigation, the Court must, at first instance, carefully scrutinize the litigation to determine whether one or more of the public policy considerations applies. If so, as a general principle, the parties' reasonable costs are to be paid from the testator's estate.

Other topics covered this week included limitation periods and discoverability in the arbitration context, setting aside an administrative dismissal for delay, setting aside a noting in default and appellate jurisdiction (final or interlocutory) in an assessment of legal fees case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110

Keywords: Intentional Torts, Assault, Battery, Duty of care, Crown Liability, Breach of Fiduciary Duty, Evidence, Witnesses, Reliability, Credibility, R. v. W. (R.), [1992] 2 S.C.R. 122, R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, R. v. Pindus, 2018 ONCA 55, R. v. Radcliffe, 2017 ONCA 176, R. v. Sanichar, 2012 ONCA 117, rev'd, 2013 SCC 4

Franchetti v. Huggins, 2022 ONCA 111

Keywords: Civil Procedure, Noting in Default, Setting Aside, Rules of Civil Procedure, Rules 1.04(1), 2.01(1)(a), 18.01, 18.02, 19.01, 19.02(1), 19.03 Intact Insurance Company v. Kisel, 2015 ONCA 205, Penner v. Niagara, 2013 SCC 19, H.B. FullerCompany v. Rogers, 2015 ONCA 173, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

Burgess v. University Health Network, 2022 ONCA 105

Keywords: Civil Procedure, Administrative Dismissal for Delay, Setting Aside, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 30, Rules of Civil Procedure, Rule 48.14, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Faris v. Eftimovski, 2013 ONCA 360, Mihoren v. Quesnel, 2021 ONCA 898

Maisonneuve v. Clark, 2022 ONCA 113

Keywords: Contracts, Settlements, Arbitration Agreements, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, section 5(1)(a)(iv), Insurance Act, R.S.O. 1990, c. I.8, section 275(4), Markel Insurance Company of Canada v. ING Insurance Company of Canada, 2012 ONCA 218, PQ Licensing S.A. v. LPQ Central Canada Inc., 2018 ONCA 331, L-3 Communication SPAR Aerospace Limited v. CAE Inc., 2010 ONSC 7133

Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115

Keywords: Labour and Employment Law, Overtime Pay, Breach of Statute, Constitutional Law, Civil Procedure, Class Proceedings, Limitation Periods, Discoverability, Appropriate Means, Common Issues, Aggregate Damages, Res Judicata, Canada Labour Code, R.S.C. 1985, c. L-2., s. 174, Class Proceedings Act, 1992, S.O. 1992, c.6, s. 28, Canada Labour Standards Regulations, C.R.C. 1978, c. 986, s. 24(2), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5, Constitution Act, 1867, s. 92(13), Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444, leave to appeal refused, [2012] S.C.C.A. No. 379, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 75, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 4288, Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098, Machtinger v. HOJ Industries, [1992] 1 S.C.R. 986, Cooper Tool Group Ltd. v. U.S.W.A., Local 6497 (1975), 10 L.A.C. (2d) 407 (Ont. Arb. Bd.), Lafarge Canada Inc. Construction Materials v. CMSG, [2000] C.L.A.D. No. 376, Koscis Transport Ltd. and Chabaylo (Re), [2003] C.L.A.D. No. 519, Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 4724, T-Line Services Ltd. v. Morin, [1997] C.L.A.D. No. 422, RSB Logistic Inc. v. Hale, [1999] C.L.A.D. No. 548. Kindersley Transport Ltd. v. Semchyshen, [2002] C.L.A.D. No. 4., Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, Cavanaugh v. Grenville Christian College, 2021 ONCA 755, Insurance Corp. of British Columbia and COPE Local 378 (Unpaid Overtime Claim), Re, [2012] B.C.W.L.D. 7745, Baroch v. Canada Cartage, 2015 ONSC 40, Shah v. LG Chem Ltd., 2018 ONCA 819, leave to appeal refused, [2018] S.C.C.A. No. 520. Markson v. MBNA Canada Bank, 2007 ONCA 334, leave to appeal refused, [2007] S.C.C.A. No. 346, Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 5, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Vezina v. Loblaw Companies Ltd. (2005), 17 C.P.C. (6th) 307 (Ont. S.C.), Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, leave to appeal refused, [2019] S.C.C.A. No. 284., British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 , Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 168., Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, R. v. Henry, 2005 SCC 76, Presley v. Van Dusen, 2019 ONCA 66, Presidential MSH Corp. v. Marr Foster & Co. LLP, 2017 ONCA 325, Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 407 ETR Concession Company Limited v. Day, 2016 ONCA 709, leave to appeal refused, [2016] S.C.C.A. No. 509, Gillham v. Lake of Bays (Township), 2018 ONCA 667, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Pioneer Corp. v. Godfrey, 2019 SCC 42, R. v. Drury, 2020 ONCA 502, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, Ontario Deputy Judges Assn. v. Ontario (2006), 80 O.R. (3d) 481

McGrath v. Joy, 2022 ONCA 119

Keywords: Wills and Estates, Holograph Wills, Interpretation, Testamentary Capacity, Civil Procedure, Costs, Public Policy Considerations, Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 6, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (U.K. Queen's Bench Div.), Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), Zimmerman v. Fenwick, 2010 ONSC 3855, Neuberger Estate v. York, 2016 ONCA 303, Housen v. Nikolaisen, 2002 SCC 33, Vout v. Hay, [1995] 2 S.C.R. 876, Skinner v. Farquharson (1902), 32 S.C.R. 58, Dujardin v. Dujardin, 2018 ONCA 597, Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Sawdon Estate v. Sawdon, 2014 ONCA 101

Singh v. Heft, 2022 ONCA 135

Keywords: Contracts, Solicitor and Client, Fees, Assessments, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Solicitors Act, R.S.O. 1990, c. S.15, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), s. 19(1)(b), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais(1993), 13 O.R. (3d) 322 (C.A.), Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), Paulpillai Estate v. Yusuf, 2020 ONCA 655, Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), Karbaliotis v. Anaheim Unit Investors (1996), 89 O.A.C. 58 (C.A.), Lala v. Basman Smith LLP, 2017 ONCA 614, CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada, 2015 ONCA 846, Ball; Stoiantsis v. Spirou, 2008 ONCA 553, Hopkins v. Kay, 2014 ONCA 514, Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.)

Short Civil Decisions

Silvera v. Taylor, 2022 ONCA 120

Keywords: Civil Procedure, Settlements, Enforcement, Rules of Civil Procedure, Rule 49.09

Philbert v. Taylor, 2022 ONCA 122

Keywords: Civil Procedure, Appeals...