Court Of Appeal Summaries (November 8-12, 2021)

• Published date: 17 November 2021
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Real Estate and Construction, Charges, Mortgages, Indemnities, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.
Following are this week's summaries of the Court of Appeal for Ontario for the week of November 8, 2021.

In Saint Marthe v. O'Connor, an MVA case, the Court provided a helpful summary of the law of experts, specifically non-party expert opinions.

Other topics covered this week included oppression, debtor-creditor, real property, interpretation of contracts and unjust enrichment.

For our readers who are not yet aware of it, 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. As most of our readers probably know, 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 to co-author 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, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Thoba v. Srajeldin, 2021 ONCA 789

Keywords: Contracts, Intention to Create Binding Legal Relations, Civil Procedure, Settlements, Enforcement

St. Marthe v. O'Connor, 2021 ONCA 790

Keywords: Torts, Negligence, MVA, Civil Procedure, Evidence, Notice, Admissibility, Opinion Evidence, Non-Party Experts, Limitations Act, 2002 S.O. 2002, c. 24, Sched. B., s. 4, Rules of Civil Procedure, Rule 53.03, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Westerhof v. Gee Estate, 2015 ONCA 206, leave to appeal refused, 36445 (October 29, 2015) and 36451 (October 29, 2015), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, Hoang v. Vicentini, 2016 ONCA 723, R. v. Mohan, [1994] 2 S.C.R. 9, Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, Brady v. Lamb (2005), 78 O.R. (3d) 680 (C.A.), Cowles v. Balac, leave to appeal refused, [2006] S.C.C.A. No. 496, Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 93., Ault v. Canada (Attorney General) (2007), 50 C.P.C. (6th) 316 (Ont. S.C.)

Maloney v. Goodman, 2021 ONCA 792

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Settlements, Limitation Periods, Farm Debt Mediation Act, S.C. 1997, c. 21, s. 19, Mortgages Act, R.S.O. 1990, c. M.40, s. 27

Giancola v. Dobrydney, 2021 ONCA 793

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Patent Defects, Defences, Caveat Emptor, Civil Procedure, Evidence, Hearsay, Summary Judgment, Costs

DeLuca v. Grillone, 2021 ONCA 798

Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Fresh Evidence

Samson c. Terjanian-Baro, 2021 ONCA 808

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5) and 21(5), Rules of Civil Procedure, Rule 61.16 (6), Sickinger v. Sickinger, 2017 ONCA 760

Lockhart v. Lockhart, 2021 ONCA 807

Keywords: Wills and Estates, Equalization of Net Family Property, Election, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, s. 6(1)

Short Civil Decisions

Elite Construction Inc. v. Canada (Attorney General), 2021 ONCA 803

Keywords: Contracts, Construction, Quantum Meruit, Unjust Enrichment, Civil Procedure, Summary Judgment, Costs, Hryniak v. Mauldin, 2014 SCC 7

CIVIL DECISIONS

Thoba v. Srajeldin, 2021 ONCA 789

[MacPherson, Simmons and Nordheimer JJ.A.]

COUNSEL:

P. Baxi, for the appellants
R. Hine, for the respondents

Keywords: Contracts, Intention to Create Binding Legal Relations, Civil Procedure, Settlements, Enforcement

FACTS:

In December 2019, the respondents brought an action for declaratory relief and oppression against the appellants. On January 16, 2020, appellants' counsel confirmed with respondents' counsel that the appellants had agreed to a settlement. After further negotiations, on February 2, 2020, the parties' accountant confirmed to all counsel that a deal had been reached by the personal respondent and the personal appellant and his lawyers. The following day, respondents' counsel confirmed the details. Minutes of settlement were finalized. However, prior to the exchange of the signed minutes of settlement, the personal appellant advised through counsel that his financing had fallen through.

On a motion to enforce the settlement, the motion judge held that the parties had agreed upon the essential terms of a settlement as of February 2/3, 2020 and that there was nothing in the record to indicate that minutes of settlement were required for the deal to be legally binding. She rejected the appellant's claim that he did not intend to create a legally binding agreement in the absence of minutes of settlement.

ISSUES:

(1) Did the motion judge make a palpable and overriding error in finding the settlement was binding despite the fact that executed minutes of settlement were not exchanged?

(2) Did the motion judge make a palpable and overriding error in finding that the parties had an intention to create a binding agreement in the face of the...