Court Of Appeal Summaries (January 17-21, 2022)

• Published date: 25 January 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Following are this week's summaries of the civil decisions of the Ontario Court of Appeal for the week of January 17, 2022.

In Walters v. Walters, a wills and estates case, the Court provided a helpful summary of the jurisprudence regarding the requirement of trustees to give effect to a testator's intentions as ascertained from the language of the will and the surrounding circumstances, including an investigation of the financial needs of the income beneficiary, before encroaching on capital to make payments to that beneficiary..

Other topics covered included claims on a promissory note and under an agreement of purchase and sale of land, amending pleadings and security for costs.

I would like to remind our readers to continue to consult Civil Procedure & Practice in Ontario (CPPO). Now into its second year since initial publication and having been recently updated, the CPPO is a free online resource jointly published by the University of Windsor and CanLII. 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 of co-writing 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.

Table of Contents

Civil Decisions

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 39

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06(1), NDrive, Navigation Systems v. Zhou et al., 2021 ONSC 7366, NDrive, Navigation Systems v. Zhou, 2021 ONSC 7772, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, 156 O.R. (3d) 551, Yaiguaje v. Chevron Corp., 2017 ONCA 827, 138 O.R. (3d) 1, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, 268 O.A.C. 172, York University v. Markicevic, 2017 ONCA 651, Hall-Chem Inc. v. Vulcan Packaging Inc. (1994), 72 O.A.C. 303 (C.A.), Royal Bank of Canada v. Hi-Tech Tool and Die Inc., 2013 CarswellOnt 5678 (C.A.), 798839 Ontario Ltd. v. Platt, [2014] O.J. No. 6077 (C.A.), Wiseau Studio, LLC v. Harper, 2021 ONCA 396, 66 C.P.C. (8th) 106, Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215

Wharton Holdings Limited v. Balletto, 2022 ONCA 43

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment

Scott v. Forjani, 2022 ONCA 30

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Damages, Deposits, Forfeiture, Evidence, Expert Evidence, Weight, Adverse Inferences

Lee v. Magna International Inc., 2022 ONCA 32

Keywords: Torts, Negligence, Duty of Care, Anns/Cooper Test, Employment Law, Constructive Dismissal, Civil Procedure, Amending Pleadings, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Correia v. Canac Kitchens, 2008 ONCA 506, Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, Cerqueira v. Ontario, 2010 ONSC 3954, Bercovici v. Attorney General of Canada, 2019 ONSC 2610

Walters v. Walters, 2022 ONCA 38

Keywords: Wills and Estates, Trusts, Discretionary Trusts, Interpretation, Testator's Intentions, Fiduciary Duties, Capital Encroachment, Trezzi v. Trezzi, 2019 ONCA 978, Ross v. Canada Trust Company, 2021 ONCA 161, Re Gulbenkian's Settlement, (1968), [1970] A.C. 508, McPhail v. Doulton (1970), [1971] A.C. 424, Cowper-Smith v. Morgan, 2017 SCC 61, Fox v. Fox Estate (1996), 28 O.R. (3d) 496 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 241, Gisborne v. Gisborne (1877), 2 App. Cas. 300 (U.K.H.L.), Hunter Estate v. Holton (1992), 7 O.R. (3d) 372 (Gen. Div.), 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, Banton v. Banton, (1998) 164 D.L.R. (4th) 176 (Ont. Gen. Div.), Ghag v. Ghag, 2021 BCCA 106, Barnes v. Barnes (2008), 42 E.T.R. (3d) 16 (Ont. S.C.), Re Butler, [1951] O.W.N. 670 (Ont. H.C.), Re Luke, [1939] O.W.N. 25 (Ont. H.C.), Hinton v. Canada Permanent Trust Co. (1979), 5 E.T.R. 117 (Ont. H.C.), aff'd [1980] O.J. No. 1720 (Ont. C.A.), O'Donnell (Litigation Guardian of) v. Canada Trust Co., [1996] O.J. No. 3461 (Gen. Div.), Re McVean (1985), 51 O.R. (2d) 685 (H.C.), Re Passmore Estate (1965), 49 D.L.R. (2d) 176 (Alta. App. Div.), Paterson (Attorney of) v. Paterson Estate (1996), 109 Man. R. (2d) 294 (Q.B.), D.W.M Waters, Mark R. Gillen & Lionel D. Smith, Waters' Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012), Corina S. Weigl, "Keeping Fiduciaries Fit: The Exercise of Discretion," Canadian Bar Association of Ontario, Institute of Continuing Legal Education, The Outer Limits: Exploring Issues and Opportunities in Agency, Attorney and Trusteeship, January 28, 1999, Cullity J, Judicial Control of Trustees' Discretions (1975), 25 U.T.L.J. 99, Carmen S. Thériault, Widdifield on Executors and Trustees, loose-leaf (2021-Rel. 11), 6th ed. (Toronto: Carswell, 2021)

Short Civil Decisions

Theall Group LLP v. Bauer, 2022 ONCA 22

Keywords: Contracts, Solicitor and Client, Civil Procedure, Charging Orders, Certificates of Pending Litigation, Costs, Solicitors Act, R.S.O. 1990, c. S.15, ss. 34(1)

Naccarato v. Naccarato, 2022 ONCA 35

Keywords: Contracts, Solicitor and Client, Civil Procedure, Charging Orders, Security for Costs, Solicitors Act, R.S.O. 1990, c. S.15, ss. 34(1), Family Law Rules, Rule 25(19)(c)

Psaila v. Kapsalis, 2022 ONCA 37

Keywords: Civil Procedure, Summary Judgment, Notice, Expert Opinions, Costs, City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, section 42(6)

Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 57

Keywords: Civil Procedure, Costs, Variation, Offers to Settle, Rules of Civil Procedure, Rule 49

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CIVIL DECISIONS

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 39

[Lauwers J.A. (Motion Judge)]

Counsel:

R. Gilliland and C. Groper, for the moving parties

M. Bacal, for the responding parties S. Z., Aqua Latitude International Limited, Aguazion, Inc.

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06(1), NDrive, Navigation Systems v. Zhou et al., 2021 ONSC 7366, NDrive, Navigation Systems v. Zhou, 2021 ONSC 7772, Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 474, 156 O.R. (3d) 551, Yaiguaje v. Chevron Corp., 2017 ONCA 827, 138 O.R. (3d) 1, Combined Air Mechanical Services Inc. v. Flesch, 2010 ONCA 633, 268 O.A.C. 172, York University v. Markicevic, 2017 ONCA 651, Hall-Chem Inc. v. Vulcan Packaging Inc. (1994), 72 O.A.C. 303 (C.A.), Royal Bank of Canada v. Hi-Tech Tool and Die Inc., 2013 CarswellOnt 5678 (C.A.), 798839 Ontario Ltd. v. Platt, [2014] O.J. No. 6077 (C.A.), Wiseau Studio, LLC v. Harper, 2021 ONCA 396, 66 C.P.C. (8th) 106, Malik v. Attia, 2020 ONCA 787, 29 R.P.R. (6th) 215

facts:

The moving parties moved for security for costs under r. 61.06(1) of the Rules of Civil Procedure.

The moving parties started an arbitration in December 2015, and received an arbitral award of US$1,068,085.43. After disbursing approximately $200,000 to others, the responding party/appellant, S. Z. collected the balance of the arbitral award and paid it into the account of Aguazion Inc., which he controlled. The moving parties were granted a world-wide Mareva injunction in May 2020, on the basis that "the materials disclose a strong prima facie case of civil fraud."

The motion judge granted partial summary judgment against the responding parties/appellants, dismissed...