Court Of Appeal Summaries (December 20-24, 2021)

• Published date: 30 December 2021
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Debt Capital Markets, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Family Law, Insurance Laws and Products, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Real Estate, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening

Following are this week's summaries of the Court of Appeal for Ontario for the week of December 20, 2021.

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In Foxgate Development Inc. v. Jane Doe, the Court considered the requirements of fairness where a court's own motion has resulted in an order striking the pleadings of a self-represented litigant in a dispute between a land developer and First Nations. The Court found that the motion judge had erred in conflating his finding on contempt with abuse of process, and denied the appellant a fair opportunity to be heard before making an order striking his pleadings ordering significant costs against him.

In Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, the Court determined that the motion judge erred in law by finding that the plaintiff had waived automatic renewal provision of the subject Consulting Agreement.

In Hemlow Estate v. Co-operators General Insurance Company, the Court upheld the application judge's determination that the insurer had a duty to defend an estate as a result of the alleged negligence of the deceased, and that the pollution exclusion did not negate the duty to defend.

Wishing our readers all the best for the holiday season and a very Merry Christmas to all celebrating!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 907

Keywords: Contracts, Dependent Contractors, Waiver, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, s. 4, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Colautti Construction Ltd. v. City of Ottawa (1984), 46 O.R. (2d) 236 (C.A.), Shelanu Inc. v. Print Three Franchising Corp.(2003), 64 O.R. (3d) 533 (C.A.)

Hemlow Estate v. Co-operator General Insurance Company, 2021 ONCA 908

Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Coverage, Duty to defend, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, ING Insurance Co. of Canada v. Miracle, 2011 ONCA 321, Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.), Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (C.A.), O'Byrne v. Farmers' Mutual Insurance Company (Lindsay), 2014 ONCA 543

Sicotte v. 2399153 Ontario Ltd., 2021 ONCA 912

Keywords: Contracts, Interpretation, Real Property, Mortgages, Guarantees, Priority Agreements, Postponements, Civil Procedure, Summary Judgment, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, leave to appeal to S.C.C. refused, 36974 (March 2, 2017), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Bhasin v. Hrynew, 2014 SCC 71, Schuler A.G. v. Wickman Machine Tool Sales Ltd., [1974] A.C. 235 (H.L.)

Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910

Keywords: Civil Procedure, Procedural and Natural Justice, Contempt, Sanctions, Abuse of Process, Striking Pleadings, Self-Represented Litigants, Amicus Curiae, Costs, Aboriginal Law, Courts of Justice Act, United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, leave to appeal refused, [2008] S.C.C.A. No. 506., Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52, Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, Chiang (Trustee of) v. Chiang (2009), 2009 ONCA 3, Dare Foods (Biscuit Divisions) Ltd. v. Gill, [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.), Toronto Transit Commission v. Ryan (1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen. Div.), Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686, [2006] O.J. No. 2488 (C.A.), Carey v. Laiken, 2015 SCC 17, Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 82 O.R. (3d) 721 (C.A.), Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, Morwald-Benevides v. Benevides, 2019 ONCA 1023

York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914

Keywords: Real Property, Condominiums, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, ss. 92(4), 93(3), 117, 134, 134(3)(b), and 134(5), Hawkins v. TSCC 1696, 2019 ONSC 2560, TSCC 1724 v. Evdassin, 2020 ONSC 1520

Overtveld v. Overtveld, 2021 ONCA 930

Keywords: Civil Procedure, Appeals, Extension of Time, Vexatious Litigants, Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, Beard Winter LLP v. Shekhdar, 2016 ONCA 493

Short Civil Decisions

Froom v. LaFontaine, 2021 ONCA 917

Keywords: Family Law, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b), Mantella v. Mantella, 2009 CarswellOnt 1060, Ashak v. Ontario (Director, Family Responsibility Office), 2013 ONCA 375

W.S. v. P.I.A., 2021 ONCA 923

Keywords: Family Law, Custody and Access, Divorce Act, R.S.C. 1985, Van de Perre v. Edwards, 2001 SCC 60, A.M. v. C.H., 2019 ONCA 764

SS & C Technologies Canada Corp v. The Bank of New York Mellon Corporation, 2021 ONCA 913

Keywords: Civil Procedure, Appeals, Expediting Appeals, Trials, Bifurcation, Machado v. Ontario Hockey Association, 2019 ONCA 210, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

McLean v. Wolfson, 2021 ONCA 928

Keywords: Torts, Negligence, MedMal, Civil Procedure, Documentary Discovery, Orders, Enforcement, Dismissal of Action, Adjournments, Appeals, Fresh Evidence, Rules of Civil Procedure, Rules 30.04(2), 30.08 and 60.12

CIVIL DECISIONS

Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2021 ONCA 90

[Feldman, Harvison Young and Thorburn JJ.A.]

COUNSEL:

P. Virc and M. Title, for the appellant

K. Prehogan and M. Skrow, for the respondent

Keywords: Contracts, Dependent Contractors, Waiver, Civil Procedure, Limitation Periods, Summary Judgment, Limitations Act, 2002, S.O. 2002, s. 4, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Colautti Construction Ltd. v. City of Ottawa (1984), 46 O.R. (2d) 236 (C.A.), Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.)

FACTS:

J. G Consulting Ltd. ("JGC") brought a claim for breach of contract against Recipe Unlimited Corporation, formerly known as Cara Operations Limited ("Cara"). JGC claimed that the respondent, Cara breached its signed and executed consulting agreement of March 10, 2006 ("the Agreement"). JGC claimed damages, including damages for lost stock options, and common law reasonable notice on the basis that JGC was a dependent contractor.
The motion judge dismissed the action by way of summary judgment.

Relevant Terms of the Agreement:

The Agreement stipulated that JGC was an independent contractor who would be paid an annual consulting fee of $420,000 to provide IT consulting services and an additional $250 per hour for each additional hour that services were required in excess of 180 hours. The Agreement also provided that if Cara became a public corporation with shares listed on a public stock exchange and offered an employee equity incentive plan, JGC would have the opportunity to participate in the plan on the same terms and conditions offered to its other senior management level employees. The Agreement contained an automatic renewal of the three-year term "unless terminated prior to the expiration date in accordance with this Agreement".

Arrangement Between the Parties After August 2008:

On August 29, 2008 (12 days before the deadline to give notice that the Agreement would not be renewed), S.S, then-Chief Financial Officer of Cara, met with J.G. According to S.S, the purpose of the meeting was "to discuss the existing agreement and next steps with respect to that agreement" because "if Cara wanted to change the contract, it had to be done prior to six months otherwise it was an automatic renewal clause."

Following the meeting, J.G sent an email to S.S advising him that, "it was a pleasure meeting with you today. I look forward to working with you and know the future is exciting. Let this email serve to remove the auto renewal from my contract. I look forward to our discussions, in early 2009, after the new HQ moves and Data Centre builds quiet down".

S.S responded to the aforementioned email stating, "I too look forward to discussing with you the terms of our new arrangement that will take effect after your current agreement with Cara comes to an end in March 2009.

In early 2009, the parties met to discuss the terms of a new arrangement. S.S sent an email to J.G on January 26, 2009 saying that the "current agreement between [J.G] and Cara expires as scheduled March, 2009" and summarizing terms for a new agreement. S.S asked J.G to advise if there was anything that he missed and recorded that J.G. had "no additional comments to add." No new agreement was signed.

Throughout the eight-year relationship, J.G submitted his invoices with the words: "As per Agreement dated March-10-2006".

ISSUES:

(1) Did the motion judge err in law by finding that J.G had waived the auto renewal provision of the consulting agreement?

(2) What terms governed the parties' relationship after J.G sent an email purporting to remove the auto renewal provision in the Agreement?

(3) Was J.G a dependent contractor?

(4) Was the reasonable notice claim statute-barred?

(5) Did JGC plead a breach of the duty of good faith?

(6) Did the motion judge improperly shift the burden of proof to the responding party?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

One party to an agreement may choose to forego reliance on a contractual right but only where the...