Court Of Appeal Summaries (April 25 - 29, 2022)

• Published date: 02 May 2022
• Subject Matter: Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Tax, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Contracts and Commercial Law, Insurance Laws and Products, Trials & Appeals & Compensation, Sales Taxes: VAT, GST, Securities, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

These are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 25, 2022.

In Medcap Real Estate Holdings Inc. (Re), the Court determined that the application judge did not err in the exercise of his discretion and dismissed the appellant's appeal of the bankruptcy order. The appellant did not establish either of the predicate factors that could justify refusing an otherwise proven bankruptcy application. It did not show that it was able to pay its debts, nor did it show any other sufficient cause why no bankruptcy order should be made.

In Martin v. 11037315 Canada Inc., the Court allowed the appeal in part, set aside the default judgment for foreclosure over a property, and ordered a trial of the issue whether the appellant, who had bought the property from the mortgagee out of foreclosure, was a bona fide purchaser for value without actual notice that the respondent was occupying the property and may have had a claim to set aside the default judgment for foreclosure.

Other topics covered this week included residential tenancies, the duty to defend in a title insurance matter, the appointment of a receiver in the securities regulation context, the collection and remittance of retail sales tax, mining royalty interests as interests in land that run with the land.
Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Smith v. Youthlink Youth Services, 2022 ONCA 313

Keywords: Administrative Law, Standard of Review, Real Property, Residential Tenancies, Statutory Interpretation, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss 5(k), 5.1, 210, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, White v. Upper Thames River Conservation Authority, 2022 ONCA 146, SOL-45003-14 (Re), 2014 CanLII 52441 (ON LTB)

Medcap Real Estate Holdings Inc. (Re), 2022 ONCA 318

Keywords: Bankruptcy and Insolvency, Applications for Bankruptcy Orders, Acts of Bankruptcy, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 37, 38, 42(1)(j), 43(1), 43(7), 71, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36., Ivaco Inc. (Re) (2006), 83 O.R. (3d) 108 (C.A.), Cowper-Smith v. Morgan, 2017 SCC 61, Emms (Re), [2003] O.J. No. 4961, 484030 Ontario Ltd. (Re) (1992), 8 O.R. (3d) 243 (Gen. Div.), Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, Lloyd W. Houlden, Geoffrey B. Morawetz & Janis P. Sarra, Bankruptcy and Insolvency Law of Canada, loose-leaf (2022-Rel. 4), 4th ed. (Toronto: Thomson Reuters, 2009), Frank Bennett, Bennett on Bankruptcy, 23rd ed. (Toronto, Lexis Nexis: 2021)

Enterprise Rent-A-Car Canada Company v. Ontario (Finance), 2022 ONCA 327

Keywords: Tax, Retail Sales Tax, Retail Sales Tax Act, R.S.O. 1990, c. R.31, s. 18, Excise Tax Act, R.S.C. 1985, c. E-15, Housen v. Nikolaisen, 2002 SCC 33, Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336

Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326

Keywords: Contracts, Interpretation, Real Property, Interests in Land, Mining Rights, Royalty Interests, Rules of Civil Procedure, Rule 20.01, Bank of Montreal v. Dynex Petroleum Ltd., 2002 SCC 7, Third Eye Capital Corp. v. Dianor Resources Inc., 2018 ONCA 253, Blue Note Mining Inc. v. Fern Trust (Trustee of), 2008 NBQB 310, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Weyerhauser Co. v. Ontario (Attorney General), 2017 ONCA 1007, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corp., 2021 ONCA 592, Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Re Canadian National Railways and Canadian Pacific Ltd. (1978), 95 D.L.R. (3d) 242, (B.C.C.A.), aff'd, [1979] 2 S.C.R. 668, Thunder Bay (City) v. Canadian National Railway Co., 2018 ONCA 517, Geoff R. Hall, Canadian Contractual Interpretation Law, 4th ed. (Toronto: LexisNexis, 2020)

Martin v. 11037315 Canada Inc., 2022 ONCA 322

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Mortgages, Remedies, Foreclosure, Bona Fide Purchaser for Value Without Notice, Civil Procedure, Default Judgments, Setting Aside, Land Titles Act, R.S.O. 1990, c. L.5., s. 78(4), Rules of Civil Procedure, Rule 59.06, Stanbarr Services Limited v. Metropolis Properties Inc., 2018 ONCA 244, Thomas Farrell at al. v. John Kavanagh et al., 2020 ONSC 8154, 1168760 Ontario Inc. v. 6706037 Canada Inc., 2019 ONSC 4702 (Div. Ct.), Babbie v. Petryczka (1975), 8 O.R. (2d) 718 (C.A.), Winters v. Hunking, 2017 ONCA 909, Ontario Housing Corp. v. Ong, (1987), 58 O.R. (2d) 125 (H.C.), Corbor v. Oakshott (1913), 13 D.L.R. 528 (Alta. S.C.), Gowling Lafleur Henderson LLP, Recovery Services Group, Marriott and Dunn: Practice in Mortgage Remedies in Ontario, loose-leaf (2021-Rel. 7), 5th ed. (Toronto: Thomson Reuters Canada, 2020), Canning v. Avigdor, [1961] O.W.N. 59 (Ont. C.A.), Blonski v. Jarmakowicz (1957), 9 D.L.R. (2d) 66 (Ont. H.C.), Diguillo v. Boland (1958), 13 D.L.R. (2d) 510 (Ont. C.A.), United Trust Co. v. Dominion Stores Ltd., [1977] 2 S.C.R. 915, Manias v. Norwich Financial Inc., 2008 ONCA 532, MacIsaac v. Salo, 2013 ONCA 98, MacIsaac v. Salo, citing Durrani v. Augier (2000), 50 O.R. (3d) 353 (S.C.J.), 719083 Ontario Ltd. v. 2174112 Ontario Inc., 2013 ONCA 11, aff'g 2012 ONSC 3815, Gold v. Rosenberg, [1997] 3 S.C.R. 767, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805, Tang v. Xpert Credit Control Solutions Inc., 2022 ONSC 1493

1152729 BC Ltd v. Chicago Title Insurance Company Canada, 2022 ONCA 321

Keywords:Contracts, Insurance, Title Insurance, Coverage, Duty to Defend, Rules of Civil Procedure, Rule 25.06(9), Panasonic Eco Solutions Canada Inc. v. XL Specialty Insurance Company, 2021 ONCA 612, 466 D.L.R. (4th) 276, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Wi-Lan Inc. v. St. Paul Guarantee Insurance Company, 2005 ABCA 352, [2006] 7 W.W.R. 458, leave to appeal refused, [2005] S.C.C.A. No. 548, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Kerr v. Baranow, 2011 SCC 10, Moore v. Sweet, 2018 SCC 52, Chicago Title Insurance Company v. 100 Investment Limited Partnership, 355 F. 3d 759 (4th Cir. 2004), Security Title Guarantee Corporation of Baltimore v. 915 Decatur St. NW, LLC, 2019 WL 6728449 (D.D.C.), Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, 1540039 Ontario Limited v. Farmers' Mutual Insurance Company (Lindsay), 2012 ONCA 210, 110 O.R. (3d) 116

Ontario Securities Commission v. Go-To Developments Holdings Inc., 2022 ONCA 328

Keywords: Securities Regulation, Enforcement, Receiverships, Procedural and Natural Justice, Adjournments, Civil Procedure, Appeals, Fresh Evidence, Securities Act, R.S.O. 1990, c. S.5, s. 126(1), Bank of Montreal v. Cadogan, 2021 ONCA 405, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19

Short Civil Decisions

Kirloskar Technologies (P) Ltd. v. Best Theratronics Ltd., 2022 ONCA 331

Keywords: Contracts, Agency Agreements, Debtor-Creditor, Defences, Set-Off, Public Policy, Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Uber Technologies Inc. v. Heller, 2020 SCC 16

Capsey v. Whiteside, 2022 ONCA 333

Keywords: Torts, Negligence, Occupier's Liability, Evidence, Credibility, Occupiers' Liability Act, R.S.O. 1990, c. O.2

Tewari v. McHenry, 2022 ONCA 335

Keywords: Civil Procedure, Striking Pleadings, Privilege, Absolute Privilege, Leave to Amend, Ontario Labour Relations Board

Derenzis v. Johnson, 2022 ONCA 323

Keywords: Civil Procedure, Striking Pleadings, Leave to Amend, Fraud, Breach of Contract, Negligence, Limitation Periods, Normart Management Ltd. v. West Hill Redevelopment Co. Ltd. (1998), 37 O.R. (3d) 97 (C.A.)

Overtveld v. Overtveld, 2022 ONCA 332

Keywords: Civil Procedure, Appeals, Extension of Time, Costs

Loojune v. Loojune, 2022 ONCA 334

Keywords: Wills and Estates, Guardianship, "Best Interests" Test, Management of Property, Fraud, Bias

Hemchand v. Toronto Community Housing Corporation, 2022 ONCA 330

Keywords: Civil Procedure, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733

Farej v. Fellows, 2022 ONCA 342

Keywords: Civil Procedure, Appeals, Orders, Courts of Justice Act, s. 134(7), Farej v. Fellows, 2022 ONCA 254

CIVIL DECISIONS

Smith v. Youthlink Youth Services, 2022 ONCA 313

[Doherty, Huscroft and Harvison Young JJ.A.]

Counsel:

M. Birdsell, Z. Shariff, and C. Millgate for the appellant, L.S

L. Rosen and C. Catelin, for the respondent, YouthLink Youth Services

L. Naidoo, for the intervener, Landlord and Tenant Board

Keywords: Administrative Law, Standard of Review, Real Property, Residential Tenancies, Statutory Interpretation, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss 5(k), 5.1, 210, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, White v. Upper Thames River Conservation Authority, 2022 ONCA 146, SOL-45003-14 (Re), 2014 CanLII 52441 (ON LTB)

facts:

The appellant was admitted into a transitional housing program operated by the respondent YouthLink, a registered charity that provides a range of programs and services to people aged 16-21. She was admitted on December 8, 2019 with a discharge date set for one year later, December 7, 2020. However, she was discharged after approximately one month.

The appellant was discharged from the program early because YouthLink alleged that she had failed to follow the program's rules and expectations. In particular, YouthLink was concerned that the appellant's failure to comply with COVID-19 directives and requirements posed a risk to the health and safety of other residents, as well as their staff...