Court Of Appeal Summaries (February 28, 2022 ' March 4, 2022)

Published date08 March 2022
Subject MatterInsurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Insurance Laws and Products, Constitutional & Administrative Law, Government Contracts, Procurement & PPP, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Construction & Planning, Landlord & Tenant - Leases, Civil Law, Wills/ Intestacy/ Estate Planning
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good afternoon.

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 28, 2022.

In Gefen Estate v. Gefen, an estates case, the Court reiterated that while the quality of evidence may vary depending on a claim, the civil standard of proof will always remain the same: proof on a balance of probabilities. The issues canvassed in the decision included secret trusts and the little-used doctrine of unconscionable procurement.

In The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, the Court upheld the motion judge's order striking the plaintiff's claim against the Crown of for misfeasance in public office in relation to the construction of the athlete's village for the 2015 Pan-Am Games. Bad faith is a necessary element of the torst, and the pleadings did not provide the necessary factual underpinning to make out the bad faith requirement.

In Urbancorp Toronto Management Inc. (Re), the Court confirmed the factors that should be considered when granting leave for appeal in a CCAA case are the following: (a) whether the proposed is prima facie meritorious or frivolous; (b) whether the points on the proposed appeal are of significance to the practice; (c) whether the points on the proposed appeal are of significance to the action; and (d) whether the proposed appeal will unduly hinder the progress of the action.

Other topics covered included MVA/municipal liability, rent determination for a commercial lease, intervenors in a statutory accident benefits/administrative law case, the enforcement of settlements and striking pleadings for lack of jurisdiction.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 173

Keywords: Torts, MVA, Statutory Accident Benefits, Administrative Law, Civil Procedure, Interveners, Judicial Review Procedure Act, R.S.O. 1990, c. J.1., Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O. Reg. 403/96, Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Insurance Act, R.S.O. 1990, c. I.8 Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882

The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2022 ONCA 168

Keywords: Torts, Crown Liability, Misfeasance in Public Office, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Rules of Civil Procedure, Rule 21, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, R. v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111, CUPE v. HMQ, 2017 ONSC 4874, Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), L. (A.) v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150 (C.A.), Odhavji Estate v. Woodhouse, 2003 SCC 69, Pikangikum First Nation v. Nault, 2012 ONCA 705, Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, Granite Power Corp. v. Ontario (2004), 72 O.R. (3d) 194 (C.A.), Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501

2501306 Ontario Inc. v. Country Garden Academy Inc., 2022 ONCA 177

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Rent Determination

1504641 Ontario Inc. v. 2225902 Ontario Inc., 2022 ONCA 175

Keywords: Civil Procedure, Settlements, Enforcement, Summary Judgment, Rules of Civil Procedure, Rules 20 & 49

Yang v. Co-operators General Insurance Company , 2022 ONCA 178

Keywords: Torts, Conspiracy, MVA, Statutory Accident Benefits, Civil Procedure, Striking Pleadings, Jurisdiction, Frivolous, Vexatious, Abuse of Process, Insurance Act, R.S.O. 1990, c. I.8, s. 280, Statutory Accident Benefits Schedule, O. Reg. 34/10 under the Insurance Act, Rules of Civil Procedure, Rules 21.01(1)(b) and 25.11, Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615, Mader v. South Easthope Mutual Insurance Company, 2014 ONCA 714, Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314, Lowe v. Guarantee Co. of North America (2005), 80 O.R. (3d) 222 (C.A.)

Gefen Estate v. Gefen, 2022 ONCA 174

Keywords: Wills and Estates, Secret Trusts, Contracts, Mutual Wills Agreements, Property, Joint Tenancies, Severance, Inter Vivos Transfers, Unconscionable Procurement, Civil Procedure, Evidence, Burden of Proof, Edell v. Sitzer (2001), 55 O.R. (3d) 198 (S.C.), aff'd 9 E.T.R. (3d) 1 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 372, Bellinger v. Nuytten Estate, 2002 BCSC 571, 45 E.T.R. (2d) 10, Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, F.H. v. McDougall, 2008 SCC 53, Nelson (City) v. Mowatt, 2017 SCC 8, Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, Champoise v. Prost, 2000 BCCA 426, 77 B.C.L.R. (3d) 228, Re Snowden, [1979], Milsom v. Holien, 2001 BCSC 868, 40 E.T.R. (2d) 77, Hansen Estate v. Hansen, 2012 ONCA 112, Marley v. Salga, 2020 ONCA 104, Jansen v. Niels Estate, 2017 ONCA 312, Albert H. Oosterhoff et al., Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021), A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014)

Urbancorp Toronto Management Inc. (Re), 2022 ONCA 181

Keywords: Bankruptcy and Insolvency, Distribution Orders, Anti-Deprivation Rule, Civil Procedure, Leave to Appeal, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Stelco Inc. (Re) (2005), 75 O.R. (3d) 5 (C.A.), Nortel Networks Corporation (Re), 2016 ONCA 332, Timminco Limited (Re), 2012 ONCA 552, 2 C.B.R. (6th) 332, DEL Equipment Inc. (Re), 2020 ONCA 555, Watson v. Mason (1876), 22 Gr. 574 (Ont. C.A.), Hobbs v. The Ontario Loan and Debenture Co., (1890) 18 S.C.R. 483, Canadian Imperial Bank of Commerce v. Bramalea Inc. (1995), 33 O.R. (3d) 692 (Gen. Div.), Canada v. Canada North Group Inc., 2021 SCC 30, 460 D.L.R. (4th) 309, Grant Forest Products Inc. v. The Toronto-Dominion Bank, 2015 ONCA 570, Laurentian University of Sudbury (Re), 2021 ONCA 199, 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10

Stamatopoulos v. Harris, 2022 ONCA 179

Keywords: Torts, Negligence, MVA, Municipal Liability, Road Repair, Causation, Statutory Defences, Contributory Negligence, Municipal Act, 2001, S.O. 2001, c. 25, s. 44, Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891

Short Civil Decisions

Victor Ages Vallance LLP v. OZ Optics Ltd., 2022 ONCA 169

Keywords: Contracts, Solicitor and Client, Assessment of Accounts, Jurisdiction, Reasonable Apprehension of Bias, Cohen v. Kealey & Blaney (1985), 26 C.P.C. (2d) 211 (Ont. C.A.), Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280

IT Haven Inc. v. Certain Underwriters at Lloyd's, London (Costs), 2022 ONCA 189

Keywords: Civil Procedure, Costs

CIVIL DECISIONS

Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 173

[Strathy C.J.O. (Motions Judge)]

COUNSEL:

J.V. Allen, for the appellant

D. R. Greenside, for the respondent TD Insurance Meloche Monnex

V. Crystal and T. Guy, for the respondent Licence Appeal Tribunal

N. F. Qureshi and A. Bakshi, for the proposed intervener Income Security Advocacy Centre (M53036)

F. Longo and G. Antman, for the proposed intervener Ontario Trial Lawyers Association (M53066)

R. Hardy, for the proposed intervener Advocacy Centre for Tenants Ontario (M53084)

C. P. Thompson, for the intervener the Attorney General of Ontario

Keywords: Torts, MVA, Statutory Accident Benefits, Administrative Law, Civil Procedure, Interveners, Judicial Review Procedure Act, R.S.O. 1990, c. J.1., Statutory Accident Benefits Schedule - Accidents on or After November 1, 1996, O. Reg. 403/96, Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Insurance Act, R.S.O. 1990, c. I.8 Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882

FACTS:

The proceeding involved an appeal, with leave from the Ontario Court of Appeal, from the decision of the Divisional Court. The moving parties sought leave to intervene in the appeal. The Attorney General requested and was granted, leave to intervene pursuant to Judicial Review Procedure Act. On January 12, 2022, Advocacy Centre for Tenants Ontario (ACTO) was granted leave to intervene and a motion for leave to intervene by Ontario Trial Lawyers Association (OTLA) was dismissed. A motion for leave to intervene by Income Security Advocacy Centre (ISAC) was granted.

The underlying claim was by Ms. Y for statutory accident benefits under the Statutory Accident Benefits Schedule- Accidents on or After November 1, 1996. Her claim was rejected by the insurer and her benefits were terminated. After a failed mediation, she brought her claim before a Licence Appeal Tribunal ("LAT") adjudicator. The adjudicator found that Ms. Y's claim was time-barred. The same adjudicator dismissed her request for reconsideration.

Ms. Y appealed to the Divisional Court. She also brought an application for judicial review. As the Divisional Court explained, it has jurisdiction to hear a statutory appeal on a question of law and preserve the right of judicial review, notwithstanding any right of appeal. The Divisional Court dismissed Ms. Y's appeal, finding that there was no error of law. The Divisional Court also dismissed the application for judicial review. It noted that judicial review is a discretionary remedy and it set out certain factors that it had been considering in deciding whether to exercise its discretion to hear a judicial review of an application from a LAT SABS decision where there is no error of law.

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