Court Of Appeal Summaries (February 14-18, 2022)

• Published date: 22 February 2022
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Retirement, Superannuation & Pensions, Family Law, Insurance Laws and Products, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases
• 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 February 14, 2022.

In Fanshawe College of Applied Arts and Technology v. Hitachi, a motion to quash an appeal from a judge's decision made in the claims process in the context of a class action was dismissed. The claims protocol did not clearly bar appeals to the Court of Appeal..

In 2651171 Ontario Inc. v. Brey, the Court allowed the appeal from an order finding that a purchaser was out of time to make an "off-title" requisition regarding the use of the property. The Court determined that the requisition as to whether the property was a legal four-plex was in time, and the vendor's failure to satisfy the requisition entitled the purchaser to terminate the agreement and demand the return of their deposit. The Court made these findings on appeal, having been satisfied that the record was adequate enough to allow it to do so.

In White v Upper Thames River Conservation Authority, the Court confirmed that the framework governing landlord and tenant relations set out in the Residential Tenancies Act prevails over any negotiated contractual agreement between the parties that is inconsistent with the legislation. Accordingly, there is no room in a residential lease for occupancy limitations whereby a tenant loses the right to occupy the premises for a limited period of time during the course of the tenancy.

In Bakhsh v. Merdad, the Court held that the Ontario Superior Court had jurisdiction to determine a trust or equalization claim in respect of a condo in Ontario between parties that had married and lived in Saudia Arabia and whose marriage was annulled there.

Other topics this week included boomerang summary judgment in the municipal liability context (slip and fall), what does not constitute partial summary judgment in the breach of construction contract context, intention to create a trust, spousal pension entitlement, the appraisal process to resolve claims under the Insurance Act, easements, extensions of time and security for costs.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Richardson v. Arsenov, 2022 ONCA 137

Keywords: Civil Procedure, Cross-Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 61.06(1), 61.07(a) and 61.07(b), Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Zeitoun v. Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div. Ct.), affirmed 2009 ONCA 415, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633

Desjardins General Insurance Group v. Campbell, 2022 ONCA 128

Keywords: Insurance, Property, Quantification of Loss, Appraisals, Civil Procedure, Judicial Review, Insurance Act, R.S.O. 1990, c. I.8, s. 128, 148, An Act to Amend the Insurance Act, S.O. 1966, c. 71, s. 8, Rules of Professional Conduct, s. 5.2, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Madhani v. Wawanesa Mutual Insurance Company, 2018 ONSC 4282 (Div. Ct.), Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hall Inc., 2021 ONSC 1684, D. R. Fraser Co. v. Minister of National Revenue, [1948] 4 D.L.R. 776 (P.C.), Ice Pork Genetics Inc. v Lombard Canada Ltd. et al, 2010 MBQB 77, Florida Insurance Guaranty Association, etc. v. Branco (2014), 148 So. 3d 488, Congregation of Knox's Church (Trustees) v. Hudson's Bay Co., [1993] O.J. No. 764 (Ont. C. J. (Gen. Div.)), Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Company et al., 71 D.L.R. (4th) 681 (Sask. C.A.), Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) (2016), 2 C.E.L.R. (4th) 140 (Ont. Environmental Review Trib.), Birmingham Business Centre Inc. v. Intact Insurance Company, 2018 ONSC 6174 (Div. Ct.), Joseph R. Nolan et al., Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing, 1990), Bryan A. Garner et al. 8th ed. (St. Paul, Minn.: Thomson/West, 2004)

Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings Ltd., 2022 ONCA 131

Keywords: Contracts, Interpretation, Real Property, Easements, Easements by Implication, Canadian Aviation Regulations, SOR/96-433, Gardiner v. Robinson, 2006 BCSC 1014, Anger & Honsberger, Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thompson Reuters, 2021)

Bakhsh v. Merdad, 2022 ONCA 130

Keywords: Family Law, Property, Equalization of Net Family Property, Unjust Enrichment, Constructive Trust, Civil Procedure, Jurisdiction, Res Judicata, Limitations Periods, Costs, Family Law Act, s 7(3)(a), Real Property Limitations Act, R.S.O. 1990, c. L.15, s 4, Rules of Civil Procedure, Rules 21.01(1)(a) and (3), McConnell v. Huxtable, 2014 ONCA 86, McNamee v. McNamee, 2011 ONCA 533, Rawluk v. Rawluk, [1990] 1 S.C.R. 70

Feltz Design Build Ltd. v. Larson, 2022 ONCA 150

Keywords: Contracts, Construction, Civil Procedure, Summary Judgment, Construction Act, s. 7, Rules of Civil Procedure, Rule 20, Hryniak v. Mauldin, 2014 SCC 7, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2021 ONCA 589, Malik v. Attia, 2020 ONCA 787, Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265

Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 144

Keywords: Civil Procedure, Class Proceedings, Claims Process, Appeals, Jurisdiction, Courts of Justice Act, R.S.O. 1990, Section 6(1)(b), c. C.43, Class Proceedings Act, 1992, S.O. 1992, Arbitration Act, 1991, S.O. 1991, c. 17, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 11UNCITRAL Model Law on International Commercial Arbitration, Bancroft-Snell v. Visa Canada Corporation, 2019 ONCA 822, Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, Dabbs v. Sun Life Assurance Co. of Canada (1998), 41 O.R. (3d) 97 (C.A.), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Fontaine v. Canada (Attorney General), 2012 ONCA 206, Byers (Litigation Guardian of) v. Pentex Print Master Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.), Ross v. Canada Trust Company, 2021 ONCA 161, Gefen v. Gaertner, 2021 ONCA 631, Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501

Graham v. Toronto (City), 2022 ONCA 149

Keywords: Torts, Municipal Liability, Slip and Fall, Civil Procedure, Reverse (Boomerang) Summary Judgment, Limitation Periods, Statutory Notice, Reasonable Excuse for Delay, City of Toronto Act, 2006, S.O. 2006, c. 11, ss 42(6) and 42(8), Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06, Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, Seif v. Toronto (City), 2015 ONCA 321, Azzeh v. Legendre, 2017 ONCA 385

White v. Upper Thames River Conservation Authority, 2022 ONCA 146

Keywords: Contracts, Real Property, Residential Tenancies, Occupancy Limitations, Security of Tenure, Reasonable Enjoyment, Administrative Law, Standard of Review, Statutory Interpretation, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss 2, 3, 4, 5, 22, and 210, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, R. v. Walsh, 2021 ONCA 43, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thompson/West, 2012)

2651171 Ontario Inc. v. Brey, 2022 ONCA 148

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Termination, Off-Title Requisitions, Timeliness, Use of Property, Legality, Civil Procedure, Appeals, Fact-Finding Powers on Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(1) and (4)(a), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 306440 Ontario Ltd. v. 782127 Ontario Ltd. (Alrange Container Services), 2014 ONCA 548, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, leave to appeal refused, [2020] S.C.C.A. No. 409, Hryniak v. Mauldin, 2014 SCC 7, Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, Cook v. Joyce, 2017 ONCA 49, Brar v. Smith, 2014 ONSC 5030, 1418885 Ontario Ltd. v. 2193139, 2017 ONSC 3632, rev'd on other grounds, 2018 ONCA 54

Carvalho v. Amorim, 2022 ONCA 158

Keywords: Family law, Property, Separation, Living Separate and Apart, Pension law, Spousal Survivor Entitlement, Pension Benefits Act, R.S.O. 1990, c. P.8, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Housen v. Nikolaisen, 2002 SCC 33, Greaves v. Greaves (2004), 4 R.F.L. (6th) 1 (Ont. S.C.)

Corvello v. Colucci, 2022 ONCA 159

Keywords: Property, Land Use Permit, Trusts, Three Certainties, Intention to Create Trust, Civil Procedure, Evidence, Witnesses, Credibility, Byers v. Foley (1993), 16 O.R. (3d) 641 (Gen. Div.), D.M.W. Waters, Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984), Chechui v. Nieman, 2017 ONCA 669, Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598

Short Civil Decisions

Antonyuk v. Antonyuk, 2022 ONCA 145

Keywords: Family Law, Civil Procedure, Private International Law, Conflict of Laws, Foreign Divorces, Recognition, Orders, Setting Aside, Rules of Civil Procedure, Rule 59.06, Divorce Act, R.S.C., 1985, c. 3, s. 22 Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743, 806480 Ontario Limited v. RNG Equipment Inc., 2014 ONCA 796, Kootenay Savings Credit Union v. Brar, 2021 BCSC 2027

S.I. Systems Partnership v. Geng, 2022 ONCA 138

Keywords: Contracts, Restrictive Covenants...