Court Of Appeal Summaries (October 4-8, 2021)

• Published date: 13 October 2021
• Subject Matter: Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Family Law, Insurance Laws and Products, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Please find below our summaries of the civil decisions of the Ontario Court of Appeal for the week of October 4, 2021. There were ten substantive civil decisions this week.

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N. v. F. is a child abduction case in which a stay of proceedings was granted pending leave to appeal to the Supreme Court of Canada.

In Gordon Dunk Farms Ltd. v. HFH Inc., the Court applied the Supreme Court's recent decision on discoverability in Grant Thornton LLP v. New Brunswick, 2021 SCC 31, in respect of a claim for damages suffered from the collapse of a barn.

Other topics covered this week included no reasonable cause of action for relational economic loss, two cases on whether a contract was entered into, striking pleadings for failure to comply with a court order, child protection, breach of contract of a commission agreement with a mortgage broker, the calculation of net family property where there is a date of marriage deduction for property brought into the marriage and the extension of time to serve a statement of claim.

Wishing everyone a happy Thanksgiving long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

N. v. F., 2021 ONCA 688

Keywords: Family Law, Custody and Access, Relocation, Child Abduction, Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Stay Pending Appeal, Hague Convention, Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1), s. 65.1(1), and s. 65.1(2), Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 22, s. 23, and s. 40, N. v. F., 2021 ONCA 614, Zafar v. Saiyid, 2017 ONCA 919, Geliedan v. Radwah, 2020 ONCA 254, D.C. v. T.B., 2021 ONCA 562, K.K. v. M.M., 2021 ONCA 407, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Leis v. Leis, 2011 MBCA 109, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, J.P.B. v. C.B., 2016 ONCA 996

2460907 Ontario Inc. v. 1521476 Ontario Inc., 2021 ONCA 682

Keywords: Torts, Negligence, Duty of Care, Proximity, Pure Economic Loss, Relational Economic Loss, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35

Salvatore v. Tommasini , 2021 ONCA 691

Keywords: Contracts, Interpretation, Agreements to Agree, Intention to Enter into Binding Contractual Relations, Civil Procedure, Summary Judgment, Geoff R. Hall, Canadian Contractual Interpretation Law, 3rd ed., (Toronto: LexisNexis, 2016)

Smith v. GCAT Group Inc., 2021 ONCA 700

Keywords: Civil Procedure, Orders, Enforcement, Striking Pleadings, Rules of Civil Procedure, Rule 60.12(b), Oz Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

M. L. v. B.T., 2021 ONCA 683

Keywords: Family Law, Child Protection, Custody and Access, Indigenous Children, Office of the Children's Lawyer, Civil Procedure, Stay Pending Appeal, Fresh Evidence, Factums, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, ss. 1, 10, Children's Law Reform Act, R.S.O. 1990, c. C.12, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched 1, ss. 2, 74(3), 80, 101(3), 102, 116(1), 112(3), Courts of Justice Act, R.S.O. 1990, c. C43, s 89(3.1), Family Law Rules, s. 7(4), Rules of Civil Procedure, Rule 63.02(1), UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

Gordon Dunk Farms Ltd. v. HFH Inc., 2021 ONCA 681

Keywords: Breach of Contract, Torts, Negligence, Civil Procedure, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, s. 14, Limitation of Actions Act, S.N.B. 2009, c. L-8.5, Becker v. Toronto (City), 2020 ONCA 607, Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684, Kaynes v. BP p.l.c., 2021 ONCA 36, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, McSween v. Louis (2000), 132 O.R. (3d) 304 (C.A.), Lawless v. Anderson, 2011 ONCA 102, Dale v. Frank, 2017 ONCA 32, leave to appeal to S.C.C. refused, 37494 (October 12, 2017), Morrison v. Barzo, 2018 ONCA 979

OMJ Mortgage Capital Inc. v. King Square Limited , 2021 ONCA 690

Keywords: Contracts, Interpretation, Corner Brook (City) v. Bailey, 2021 SCC 29, Harvey Kalles Realty Inc. v. BSAR (Eglinton) LP, 2021 ONCA 426

Knight v. Knight-Kerr , 2021 ONCA 686

Keywords: Family Law, Equalization of Net Family Property, Domestic Contract, Matrimonial Home, Family Law Act, R.S.O. 1990 c. F.3, s. 2(10), s. 4(1), s. 5(1), s. 18(1), s. 52(1), and s. 52(2)

ESC Enterprises Inc. V. 1867295 Ontario Inc., 2021 ONCA 687

Keywords: Contracts, Interpretation, Certainty, Restitution, Unjust Enrichment, Quantum Meruit, Corporations, Corporate Veil, Owners, Statata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Yaiguaje v. Chevron Corporation, 2018 ONCA 472, Transamerica Life Insurance Co. of Canada v. Canada Life Insurance Co. (1996), 28 O.R (3d)

Sbihat v. Nasar , 2021 ONCA 701

Keywords:Civil Procedure, Originating Process, Statements of Claim, Service, Extension of Time, Rules of Civil Procedure, Rule 14.08(1)

Short Civil Decisions

Lalonde v. Agha , 2021 ONCA 704

Keywords: Civil Procedure, Costs

CIVIL DECISIONS

N. v. F., 2021 ONCA 688

[Paciocco J.A.]

Counsel:

F. L. Jamal and F. Yehia, for the appellant

B. R.G. Smith and L. Love-Forester, for the respondent

Keywords: Family Law, Custody and Access, Relocation, Child Abduction, Civil Procedure, Conflict of Laws, Jurisdiction, Appeals, Stay Pending Appeal, Hague Convention, Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983, No. 35, Supreme Court Act, R.S.C., 1985, c. S-26, s. 40(1), s. 65.1(1), and s. 65.1(2), Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 22, s. 23, and s. 40, N. v. F., 2021 ONCA 614, Zafar v. Saiyid, 2017 ONCA 919, Geliedan v. Radwah, 2020 ONCA 254, D.C. v. T.B., 2021 ONCA 562, K.K. v. M.M., 2021 ONCA 407, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Leis v. Leis, 2011 MBCA 109, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, J.P.B. v. C.B., 2016 ONCA 996

facts:

In this case, the appellant brought a motion pursuant to s. 65.1(1) of the Supreme Court Act for a stay of proceedings relating to the court's decision in N. v. F., 2021 ONCA 614, pending her leave to appeal application to the Supreme Court of Canada.

N. v. F., 2021 ONCA 614

Our summary of N. v. F., 2021 ONCA 614 can be found here.

The facts and holding of that case, in brief, are as follows. The appellant is a Canadian citizen, and the respondent is a Pakistani national. The parties married in February 2012 and lived together in Dubai, the UAE, for eight years. They have two children under the age of five, who are both Canadian citizens. Neither the parties nor children are UAE nationals. In mid-2020, the appellant advised the respondent that she intended to take the children to Milton, Ontario, for a month-long trip to visit her parents. The respondent consented to the trip, and the appellant purchased return airline tickets. After arriving in Canada, the appellant told the respondent of her unilateral decision to not return to Dubai with the children. The appellant took no steps in the Ontario courts to determine the jurisdictional issue that arose regarding the custody and access of the children. The respondent commenced legal proceedings in Dubai and then in Ontario to have the children returned.

The appellant appealed the trial judge's decision that Ontario did not have jurisdiction to deal with the case. The trial judge concluded that, on a balance of probabilities, the children's best interests would be served by their return to Dubai so that a court there could adjudicate the matters of custody, access, and guardianship.

On appeal, the Ontario Court of Appeal considered six issues. The appeal was allowed in part, with Lauwers J.A. dissenting. Specifically, the court held that:

(1) Fresh evidence should not be admitted as it was of little or no relevance to the issues in the proceeding, and one of the documents could have been available at trial if the appellant had acted with reasonable diligence.

(2) The applicable standard of review for Custody and Support Orders was Deference, and for Questions of Foreign Law was Correctness.

(3) The trial judge did not err in declining jurisdiction under s. 22 of the CLRA. The trial judge was correct because the children were not living in Ontario with both parents since their arrival in June 2020, and the appellant failed to establish all six enumerated criteria under s. 22(1)(b).

(4) The trial judge did not err in declining jurisdiction under s. 23 of the CLRA. A trial judge's power under s. 23 is discretionary, and the trial judge carefully considered the evidence and made a correct decision regarding its application to the case.

Lauwers J.A. dissented on this issue and found that the trial judge made a palpable and overriding error because he failed to properly assess the harm of an involuntary separation of the children from the appellant. Lauwers J.A. also stated the trial judge should have found a risk of serious harm to the children in the application of UAE custody law, because a parenting determination by the Dubai courts would not be made based on the children's best interests, as understood under Ontario law. Accordingly, Lauwers J.A. would have allowed the appeal and ordered that the Ontario Superior Court had jurisdiction to make a parenting order in relation to the children.

(5) The trial judge did not err in declining to exercise parens patriae jurisdiction. The trial judge correctly applied the...