Court Of Appeal Summaries (October 12-15, 2021)

• Published date: 19 October 2021
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Family and Matrimonial, Corporate and Company Law, Contract of Employment, Discrimination, Disability & Sexual Harassment, Unfair/ Wrongful Dismissal, Health & Safety, Family Law, Trials & Appeals & Compensation, Franchising, Civil Law
• 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 October 12, 2021.

Congratulations to our own Reeva M. Finkel and Brendan Jones for their success in Hydro One Networks Inc. v. Niagara Radio Group Inc. In that case, the Court dismissed an appeal from an order for specific performance that also involved an intervener, being the appellant's counsel that had negotiated the contract that was specifically enforced.

In Bouchard v. Sgovio, the majority held that the motion judge properly made orders pursuant to Rule 1(8) of the Family Law Rules. The majority found that Rule 1(8) had not been interpreted as being confined to purely procedural remedies. The majority further found that nothing prevented a court from making an enforcement order in addition to, or in lieu of, a contempt order even if a contempt order was sought in the proceeding.

In Hucsko v. A.O. Smith Enterprises Limited, the Court set aside the trial decision, finding that an employer's decision to terminate an employee's employment was a proportional and wholly warranted response to sexual harassment.

In Tanti v. Tanti, the Court set out the test for capacity to marry:the marrying parties must understand the nature of the marriage contract and the duties and responsibilities that flow from it.

In Freeza, Brown J.A concluded his short endorsement by stating that one of the great on-going failures of the Ontario civil justice system is the confusion entrenched in the Courts of Justice Act concerning appeal routes from orders made by judges of the Superior Court of Justice. That such confusion inflicts unnecessary legal costs on parties, delays the resolution of appeals on their merits and, as this case illustrates, sows uncertainty about how a party can attempt to protect its rights pending appeal. Justice Brown called on the Ontario Legislature to enact legislation that creates an unambiguous "bright line" explaining where an appeal lies.

Lastly, for our readers who have not yet heard about it, I would like to introduce them to a new online publication, Civil Procedure & Practice in Ontario (CPPO) (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 and ideas for improvement.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Burke v. Poitras, 2021 ONCA 703

Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Fresh Evidence, Costs, Palmer v. The Queen, 1980 1 SCR 759, Family Law Rules, O. Reg. 114/99, Spousal Support Advisory Guidelines: The Revised User's Guide (April 2016), Moge v. Moge, 1992 3 SCR 813

2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021 ONCA 702

Keywords: Contracts, Franchise Agreements, Franchise Law, Rescission, Informed Investor Test, Definition of Franchisors Associate, Civil Procedure, Summary Judgment, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, Housen v. Nikolaisen, 2002 SCC 33, 2122994 Ontario Inc. v. Lettieri, 2016 ONSC 6209, Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, Mendoza v. Active Tire & Auto Inc., 2017 ONCA 471, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87

Tomek v. Zabukovec, 2021 ONCA 723

Keywords: Wills and Estates, Unjust Enrichment, Proprietary Estoppel, Remedies, Vesting Orders, Civil Procedure, Costs, Cowper-Smith v. Morgan, 2017 SCC 61, Wall v. Shaw, 2019 ONCA 929

Bouchard v. Sgovio, 2021 ONCA 709

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Breach, Enforcement, Variation, Contempt, Children's Law Reform Act, R.S.O 1990, c. C.12, ss. 20-29, s. 35, s. 36, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15, s. 16, s. 17, Family Law Rules, O. Reg. 114/99, Rules 1(8), 15 and 31, Hughes v. Hughes, (2007), 85 O.R. (3d) 505, Mullin v. Sherlock, 2018 ONCA 1063, Children's Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208, Freedman v. Freedman, 2020 ONSC 301, Shouldice v. Shouldice, 2016 ONSC 1481, Sadlier v. Carey, 2015 ONSC 3537, Mantella v. Mantella, 2009 ONCA 194, Hefkey v. Hefkey, 2013 ONCA 44, Prescott-Russell Services for Children and Adults v. G. (N.), [2006] 82 O.R. (3d) 686 (Ont. C.A.), Chan v. Town, 2013 ONCA 478, Murano v. Murano (2002), 219 D.L.R. (4th) 334 (Ont. C.A.), Van de Perre v. Edwards, 2001 SCC 60, A.M. v C.H., 2019 ONCA 764, Slaughter v. Slaughter, 2013 ONCA 432, A.P. v. L.K., 2021 ONSC 150, X. v. Y., 2016 ONSC 4333, J.C.W. v. J.K.R.W., 2014 BCSC 488, E.T. v. L.D., 2018 ONSC 5132, M.L.S. v. N.E.D., 2017 SKQB 183, Belcourt v. Charlebois, 2020 ONSC 4124

Tanti v. Tanti, 2021 ONCA 717

Keywords: Family Law, Domestic Contracts, Validity, Capacity, Civil Procedure, Evidence, Experts, Cross-examination, Procedural and Natural Justice, Right to be Heard, Reasonable Apprehension of Bias, Tanti v. Tanti, 2021 ONCA 607, Hunt v. Worrod, 2017 ONSC 7397, Re McElroy, [1978] 2 O.R. (2d) 381 (Surr. Ct. J.), Reynolds v. Reynolds, 1966 CanLII 687 (B.C.S.C.), Chertkow v. Feinstein, 1929 CanLII 513 (AB CA), Lacey v. Lacey (Public Trustee of), [1983] B.C.J. No. 1016 (S.C.), Ross-Scott v. Potvin, 2014 BCSC 435, Knox v. Burton (2004), 6 E.T.R. (3d) 285, aff'd 14 E.T.R. (3d) 27, Costantino v. Costantino, 2016 ONSC 7279, Palahnuk v. Palahnuk Estate, [2006] O.J. No. 5304 (Ont. S.C.), Kostopoulos v. Jesshope, 1985 CanLII 2047 (ON CA), leave to appeal refused [1985] S.C.C.A. No. 93, Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, Kimberly Whaley et al., Capacity to Marry, (Aurora: Cartwright Group, 2010), "The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity" (2020) Can J Psychiatry 1

Hydro One Networks Inc. v. Niagara Radio Group Inc., 2021 ONCA 719

Keywords: Contracts, Real Property, Easement Agreements, Solicitor and Client, Remedies, Specific Performance, Civil Procedure, Interveners, Substantial Indemnity Costs, Rules of Civil Procedure, Rule 13.01

1476335 Ontario Inc. v. Frezza, 2021 ONCA 732

Keywords: Real Property, Constructive Trust, Fraudulent Conveyances, Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Certificate Pending Litigation, Adjournments, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2)

Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722

Keywords: Civil Procedure, Contempt, Sentencing, Striking Pleadings, Default Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 140(5), Rules of Civil Procedure, Rules 1.04, 30.02, 30.11, 60.11, 60.12, Falcon Lumber Limited. v. 24803375 Ontario Inc., 2019 ONSC 4280, aff'd 2020 ONCA 310, Boily v. Carleton Condominium, 2014 ONCA 574, SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, iTrade Finance Inc. v. Webworx Inc., (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.), Paul Magder Furs Ltd. v. Ontario (Attorney General), 6 O.R. (3d) 188 (Ont. C.A.), Dickie v. Dickie, 2006 CanLII 576 (ON CA), Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310

Hucsko v. A.O. Smith Enterprises Limited , 2021 ONCA 722

Keywords: Employment Law, Wrongful Dismissal, Just Cause, Sexual Harassment, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McKinley v. BC Tel, [2001] 2 S.C.R. 161, Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Sexual Harassment in the Workplace, 3rd ed. (Toronto: Butterworths, 2000)

Short Civil Decisions

RE/MAX Realtron Realty Inc. v. 2458313 Ontario Inc., 2021 ONCA 714

Keywords: Contracts, Breach, Real Property, Real Estate Brokers, Representation Agreements, Corporate Veil, Civil Procedure, Summary Judgment, Yaiguaje v. Chevron Corp., 2018 ONCA 472, leave to appeal refused, [2018] S.C.C.A. No. 255

Khan v. 1806700 Ontario Inc., 2021 ONCA 724

Keywords: Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Machado v. Ontario Hockey Association, 2019 ONCA 210

M.E. v. Ontario, 2021 ONCA 718

Keywords: Family Law, Child Protection, Civil Procedure, Appeals, Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8), 87(9), Child, Youth and Services Act, 2017, s. 142(3), Rules of Civil Procedure, Rule 2.1.01, Atlas Construction Inc. v. Brownstones Ltd., (1996), 46 C.P.C. (3d) 67 (Ont. Gen. Div.), Bryson v. Kerr, (1976), 13 O.R. (2d) 672 (Ont. Div. Ct.)

CIVIL DECISIONS

Burke v. Poitras, 2021 ONCA 703

[Rouleau, Hoy and Thorburn JJ.A.]

COUNSEL:

G.S. Campbell, for the appellant
J. Wilcox, for the...