Court Of Appeal Summaries (April 18 - 22, 2022)

Published date26 April 2022
Subject MatterCorporate/Commercial Law, Employment and HR, Environment, Insurance, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Discrimination, Disability & Sexual Harassment, Environmental Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Civil Law
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good afternoon.

Following are summaries of the decisions of the Court of Appeal for Ontario for the week of April 18, 2022.

In Waxman v. Waxman, the Court upheld the permanent stay of the action as a result of the failure to disclose a Mary Carter type of settlement agreement between the plaintiff and some of the defendants. In arriving at this conclusion, the Court determined that the motion judge did not err in applying Handley Estate and the requirement that any agreement which changes the landscape of the litigation by altering the adversarial position of the litigants must be disclosed immediately, not months later.

In Render v. ThyssenKrupp Elevator (Canada) Limited, a just cause dismissal case, the Court upheld the trial judge's finding that the employer had just cause to terminate the employee. However, the Court also found that the trial judge erred by not awarding the employee his termination entitlements under the ESA. In addition, the Court was of the view that, as a result of litigation misconduct, the respondent employer should not have received any costs of the trial (the trial judge had awarded costs on a 50% reduced basis as a result of that conduct).

In Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula, the Court upheld the lower court's conviction of the Town of the South Bruce Peninsula on two counts of damaging the habitat of an endangered species, after finding that the trial judge correctly interpreted the Endangered Species Act and correctly qualified an expert witness at trial.

Other topics included business interruption insurance coverage for COVID-19 and vexatious litigants.

Wishing everyone celebrating a Happy Orthodox Easter.

Table of Contents

Civil Decisions

202135 Ontario Inc. v. Northbridge General Insurance Corporation, 2022 ONCA 304

Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310

Keywords: Employment Law, Dismissal for Cause, Punitive Damages, Civil Procedure, Costs, Litigation Misconduct, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), McKinley v. BC Tel, 2001 SCC 38, Bannister v. General Motors of Canada Ltd. (1998), 40 O.R. (3d) 577 (C.A.), Carscallen v. FRI Corp., 2005 C.L.L.C. 210-038 (Ont. S.C.), Housen v. Nikolaisen, 2002 SCC 33, Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.), McCallum v. Saputo, 2021 MBCA 62, Plester v. Polyone Canada Inc., 2011 ONSC 6068, Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 8049, Cummings v. Quantum Automotive Group Inc., 2017 ONSC 1785, Ojo v. Crystal Claire Cosmetics Inc., 2021 ONSC 1428, Khashaba v. Procom Consultants Group Ltd., 2018 ONSC 7617, McCabe v. Roman Catholic Episcopal Corp., 2019 ONCA 213, Tadayon v. Mohtashami, 2015 ONCA 777, Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, Hobbs v. Hobbs, 2008 ONCA 598, Pinder Estate v. Farmers Mutual Insurance Company (Lindsay), 2020 ONCA 413, Georg v. Hassanali (1989), 18 R.F.L. (3d) 225 (Ont. S.C.), Andrews v. Andrews (1980), 32 O.R. (2d) 29 (C.A.)

Ontario (Natural Resources and Forestry) v. Town of the South Bruce Peninsula , 2022 ONCA 315

Keywords: Environmental Law, Provincial Offences, Statutory Interpretation, Evidence, Expert Witnesses, Qualifications, Endangered Species Act, 2007, S.O. 2007, c. 6, ss. 2, 9, 10 and 17, Fisheries Act, R.S.C. 1985, c. F-14, Endangered Species Act, 2007, S.O. 2007, c. 6, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. High, 2003 BCSC 1723, R. v. Rhodes, 2007 BCPC 1, R. v. Live Nation, 2016 ONCJ 223, R. v. Abbey, 2017 ONCA 640, R. v. Mills, 2019 ONCA 940, R. v. Natsis, 2018 ONCA 425, Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.), Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Tang, 2015 ONCA 470, leave to appeal refused, [2015] S.C.C.A. No. 486, R. v. McManus, 2017 ONCA 188, R. v. T.A., 2015 ONCJ 624, R. v. Livingston, 2017 ONCJ 645, 356 C.C.C. (3d) 514, R. v. Tesfai, 2015 ONSC 7792, Moore v. Getahun, 2015 ONCA 55, leave to appeal to refused, [2015] S.C.C.A. No. 119

Mukwa v. Farm Credit of Canada , 2022 ONCA 320

Keywords: Civil Procedure, Abuse of Process, Vexatious Litigants, Provincial Public Transportation Act and Highway Improvement Act, R.S.O. 1990, c. P.50, Rules of Civil Procedure, Rules 2.1.01(1), 2.1.01(3) and 15.01(3), Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Khan v. Krylov & Company LLP, 2017 ONCA 625, Rallis v. Myers, 2019 ONCA 437, Khan v. Law Society of Ontario,2020 ONCA 320, Mukwa v. Farm Credit of Canada,2021 ONSC 1632, Sarac v. Wilstar Management Ltd., 2021 ONSC 7776, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 3820, Farm Credit Canada v. 1047535 Ontario Ltd., 2021 ONSC 2541, National Bank of Canada v. Guibord, 2021 ONSC 6549, Guibord v. National Bank, 2021 ONSC 5408, Trinity Western University v. Law Society of Upper Canada,2018 SCC 33, Groia v. Law Society of Upper Canada, 2018 SCC 27, R. v. Cunningham, 2010 SCC 10, R. v. Anderson, 2014 SCC 41

Waxman v. Waxman , 2022 ONCA 311

Keywords: Civil Procedure, Settlements, Duty to Disclose, Summary Judgment, Permanent Stays, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Housen v. Nikolaisen, 2002 SCC 33, Carotiv. Vuletic, 2021 ONSC 2778, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66

CIVIL DECISIONS

202135 Ontario Inc. v. Northbridge General Insurance Corporation , 2022 ONCA 304

[Feldman, Pepall and Favreau JJ.A.]

Counsel:

A. Evangelista, J. Kent and N. Dehnashi, for the appellant

D. Muise, for the respondents

Keywords: Contracts, Insurance, Interpretation, Coverage, Business Interruption Loss, COVID-19, Civil Procedure, Appeals, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Reid Crowther & Partners Ltd. v. Simcoe & Erie General Insurance Co., [1993] 1 S.C.R. 252, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245, Surespan Structures Ltd. v. Lloyds Underwriters, 2021 BCCA 65, Sabean v. Portage La Prairie Mutual Insurance Co., 2017 SCC 7

facts:

The respondents operate seven daycare centres called Helping Hands outside the Toronto area. Their business at the seven locations was insured through a Business Choice Policy from the appellant Northbridge from February 2020 to February 2021. The policy included a special endorsement to cover business losses arising from a pandemic. The business loss portion of the original insuring agreement is contained in Part II of the policy, and originally did not include coverage in the case of a pandemic. That coverage was added by a special endorsement titled the A.D.C.O. Program Endorsement, which amended the Part I - Property Insured, Part II - Business Income, and Part III - Commercial General Liability coverages.

The respondents made a claim in relation to COVID-19 closures from March 17, 2020 to June 22, 2020. The application judge concluded that the limit of liability clause provides coverage of $50,000 on a per location basis, for a total exposure of $350,000.

The appellants argued that the proper interpretation of the policy translates to $50,000 as a global total for the seven locations.

issues:

(1) Did the application judge err in her interpretation of the limit of liability clause contained in the "Outbreak & Negative Publicity" coverage extension for business losses suffered during a pandemic?

holding:

Appeal dismissed.

reasoning:

(1) No.

The standard of review was correctness, on the basis that the insurance policy was a standard form policy. The insurance policy under review was clearly a bespoke policy that included and excluded defined coverages for specified amounts in respect of each of the respondents' seven business locations. However, the clauses within the policy were standard, unmodified clauses that were also offered to similar businesses. In that way, they were in a standard form.

The court outlined six reasons for its decision:

(a) The internal wording of the limit...

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