Court Of Appeal Summaries (May 16, 2022 ' May 20, 2022)

• Published date: 23 May 2022
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Employment and HR, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Discrimination, Disability & Sexual Harassment, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Construction & Planning, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 16, 2022.

In McCoy v. Choi, the Court agreed with the motion judge that a claim by a professional athlete against the team doctor for medical malpractice was not covered by the collective agreement and was therefore not within the exclusive jurisdiction of a labour arbitrator.

In GFL Infrastructure Group Inc. v. Temple Insurance Company, the Court determined that the application judge did not err in concluding that the insurers had a duty to defend the insured in relation to claims for construction deficiencies. The duty to defend is engaged by the mere possibility that there may be coverage for property damage.

In M & P Drug Mart Inc. v. Norton, the Court upheld the application judge's conclusion that a non-compete covenant was unenforceable due to ambiguity.

In Barsoski Estate v. Wesley, the Court reviewed law relating to interpretation of wills in considering whether the respondent had a valid life estate or licence and whether it was void for uncertainty. The Court found that the trial judge erred in finding that the bequest was a licence rather than a life interest.

Other topics covered this week included anti-SLAPP, dismissal for delay and extension of time for leave to appeal.

Wishing everyone a Happy Victoria Day long weekend!

Table of Contents

Civil Decisions

Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387

Keywords: Civil Procedure, Dismissal for Delay, Status Hearings, Limitation Periods, Rules of Civil Procedure, rules 1.04, 2.01, 37.14 and 48.14, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2, , Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Trustee Act, R.S.O. 1990, c. T.23, Faris v. Eftimovski, 2013 ONCA 360, Prescott v. Barbon, 2018 ONCA 504, R. v. Dinardo, 2008 SCC 24, R. v. Alekozai, 2021 ONCA 633, Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671

GFL Infrastructure Group Inc. v. Temple Insurance Company, 2022 ONCA 390

Keywords: Contracts, Insurance, Coverage, Duty to Defend, "Mere Possibility" test, Negligence, Property Damage, Defence Costs, Condominium Act, 1998, S.O. 1998, c.19, s 44, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

Echelon Environmental Inc. v. Glassdoor Inc., 2022 ONCA 391

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Standard of Review, Costs, Courts of Justice Act, R.S.O. 1990, c C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, 153 O.R. (3d) 20, Raymond J. Pilon Enterprises Ltd. v. Village Media Inc., 2019 ONCA 981, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303

M & P Drug Mart Inc. v. Norton, 2022 ONCA 398

Keywords: Employment Law, Restrictive Covenants, Non-Competition Agreements, Enforceability, Civil Procedure, Appeals, Mootness, Standard of Review, Working for Workers Act, 2021, S.O. 2021, c. 35, ss. 67.2(1) and (2), Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, Elsley v. J.G. Collins Ins. Agencies, [1978] 2 S.C.R. 916

Barsoski Estate v. Wesley, 2022 ONCA 399

Keywords: Wills and Estates, Wills, Interpretation, Life Estates, Licences, Powell v. Powell [(1988), 62 Alta. L.R. (2d) 379 (Q.B.), Moore et al. v. Royal Trust Co. et al., [1956] S.C.R. 880, Re McColgan, [[1969] 2 O.R. 152 (H.C.), Kaptyn Est., (Re), 2010 ONSC 4293, Re Down (1968), 68 D.L.R. (2d) 30 (Ont. C.A.), Sifton v. Sifton, [1938] 3 D.L.R. 577 (P.C.), Lecky Estate v Lecky, 2011 ABQB 802, McKay v. Henderson Estate, 113 N.B.R. (2d) 308 (Q.B.), Re Essex County Roman Catholic School Board and Antaya (1977), 80 D.L.R. (3d), Spence v. BMO Trust Co., 2016 ONCA 196

McCoy v. Choi, 2022 ONCA 403

Keywords: Labour and Employment, Collective Agreements, Jurisdiction, Torts, Negligence, MedMal, Rules of Civil Procedure, Rule 21.01(3)(a), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Northern Regional Health Authority v. Horrocks, 2021 SCC 42, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14

828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412

Keywords: Civil Procedure, Dismissal for Delay, Appeals, Leave to Appeal, Extension of Time, Rules of Civil Procedure, r. 61.03.1(3), Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

Short Civil Decisions

Vinczer v. 7084421 Canada Ltd., 2022 ONCA 400

Keywords: Contracts, Real Property, Mortgages, 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, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

Martin v. 11037315 Canada Inc., 2022 ONCA 407

Keywords: Contracts, Real Property, Mortgages, Remedies, Foreclosure, Civil Procedure, Default Judgements, Costs, Land Titles Act, R.S.O. 1990, c. L.5., s. 78(4)

Heliotrope Investment Corporation v. 1324789 Ontario Inc., 2022 ONCA 411

Keywords: Costs

The Calbot Group Ltd. v. NSR Toronto Holdings Ltd., 2022 ONCA 410

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354

---

CIVIL DECISIONS

Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387

[Lauwers, Nordheimer and Zarnett JJ.A.]

Counsel:

J. Van Bakel and S. Gordon, for the appellants

H. Stone and J.T. Yuan, for the responding party Kenora-Rainy River Districts Child & Family Services

R. Sinding, for the responding parties the Estates of B.Z. and M.Z.

D. Fernandes, for the third party the Attorney General of Canada

R. Li and N. Laeeque, for the third party Her Majesty the Queen in Right of Ontario

Keywords: Civil Procedure, Dismissal for Delay, Status Hearings, Limitation Periods, Rules of Civil Procedure, rules 1.04, 2.01, 37.14 and 48.14, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Trustee Act, R.S.O. 1990, c. T.23, Faris v. Eftimovski, 2013 ONCA 360, Prescott v. Barbon, 2018 ONCA 504, R. v. Dinardo, 2008 SCC 24, R. v. Alekozai, 2021 ONCA 633, Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671

facts:

The Appellants' action was dismissed for delay after a status hearing under r. 48.14(7) of the Rules of Civil Procedure, on the basis that they had not provided an acceptable explanation for their delay in prosecuting the action. The Appellants sought to set aside the status hearing order.

issues:

(1) Did the status hearing judge fail to take into account as a contextual factor in assessing the delay that there was no limitation period applicable to their claims?

(2) Did the status hearing judge err in finding that the Appellants' "former counsel essentially suspended the prosecution of this action indefinitely" while she was considering starting a class action as the better way to proceed?

holding:

Appeal dismissed.

reasoning:

(1) No.

The legislation does permit abuse victims to bring an action at anytime, without regard to a limitation period. However, the Court found it does not give them a licence to ignore the requirements of the Rules of Civil Procedure once the action is started. The Court agreed that the nature of the action is a contextual factor that can affect the exercise of a status hearing judge's discretion in deciding whether to dismiss an action for delay or to let it continue. However, this did not assist the appellants.

The status hearing judge was alive to the issue and did take the absence of a limitation period into account. He stated: "The plaintiffs submit that the essence of their claim is historic sexual and physical abuse and that in such cases, different considerations apply with respect to the prejudice analysis". He also noted: "KRRDCFS submits that there are limitation periods applicable to the plaintiffs' claims which have passed, including under the Trustee Act and the Limitations Act, 2002". There is no doubt the status hearing judge was fully conversant with the law.

(2) No.

The Appellants showed no legal error in the status hearing judge's reasoning or in any of his self-instruction on the applicable law. There was a sense of exasperation that was completely justified. As the Court noted in Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671: "There comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay".

---

GFL Infrastructure Group Inc. v. Temple Insurance Company, 2022 ONCA 390

[MacPherson, Paciocco and George JJ.A.]

Counsel:

R. Emblem, J. Spotswood and C. Beaudoin, for the appellants (C69317, C69328, C69344 & C69351)/respondent by way of cross-appeal (C69351) Temple Insurance Company and Aviva Insurance Company of Canada

J. Meadows and E. Leduc, for the respondents (C69317) GFL Infrastructure Group Inc. and (C69328) Ashland Construction Group Ltd.

J. MacQuarrie and D. Chung, for the respondent (C69344) Rite- Air Mechanical Co. Ltd.

J. Brown and D. Cox, for the...