Court Of Appeal Summaries (May 9, 2022 ' May 13, 2022)

• Published date: 16 May 2022
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Contracts and Commercial Law, Discrimination, Disability & Sexual Harassment, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Human Rights, Landlord & Tenant - Leases, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

These are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 9, 2022.

In Lash v. Lash Point Association Corp., the Court allowed the appeal and set aside the approval of a sale of a property by a Received because the sale failed to satisfy any of the Soundair principles and ought not to have been approved. The factors relied upon by the motion judge to approve the sale could not serve as an effective substitute to the Soundair factors in the circumstances of the case.

In Taylor v. Hanley Hospitality Inc., the Court set aside the motion judge's order dismissing the appellant's action for constructive dismissal on the basis of the interpretation of the infectious disease emergency leave amendments to the Employment Standards Act. The motion judge made inappropriate findings of fact on the Rule 21 motion. The Court declined to interpret the amendments in the absence of a full record.

Other topics covered this week included fire insurance coverage/exclusions, the method of providing notice of waiver of conditions within agreements of purchase and sale of land and interveners.
Wishing everyone an enjoyable weekend.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Lin v. Weng, 2022 ONCA 367

Keywords: Contracts, Insurance, Interpretation, Property, Fire, Exclusions, Statutory Interpretation, Retrospectivity, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 129.1, Hryniak v. Mauldin, 2014 SCC 7, Housen v. Nikolaisen, 2002 SCC 33, Daley v. Economical Mutual Insurance Company (2005), 206 O.A.C. 33 (C.A.); Ledcor Construction Limited v. Northbridge Indemnity Insurance, 2016 SCC 37, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, R. v. Bengy, 2015 ONCA 397, Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, Elmer A. Driedger, "Statutes: Retroactive Retrospective Reflections" (1978), 56 Can. Bar. Rev. 264, Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law, 2007), Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed. (Scarborough: Carswell, 2011), Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014)

Lash v. Lash Point Association Corp., 2022 ONCA 361

Keywords: Real Property, Receiverships, Sale Process, Approval, Rules of Civil Procedure, Rule 59.06(2)(a), Sengmueller v. Sengmueller (1994) 17 O.R. (3d) 208 (C.A.), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), Toronto-Dominion Bank v. Usarco Ltd. (2001), 196 D.L.R. (4th) 448 (Ont. C.A.), Frank Bennett, Bennett on Receiverships, 4th ed. (Toronto: Thomson Reuters, 2021)

Imperial Oil Limited v. Haseeb, 2022 ONCA 392

Keywords: Labour and Employment, Human Rights Law, Discrimination, Citizenship, Civil Procedure, Interveners, Friends of the Court, Human Rights Code, R.S.O. 1990, c. H.19, s. 5(1), Rules of Civil Procedure, Rule 13.03(1), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, Foster v. West, 2021 ONCA 263

Taylor v. Hanley Hospitality Inc., 2022 ONCA 376

Keywords: Employment Law, Constructive Dismissal, Infectious Disease Emergency Leave, Civil Procedure, Determination of Issue Before Trial, Employment Standards Act 2000, S.O. 2000, c. 41, ss. 50.1, 141, O. Reg. 228/20, Emergency Management and Civil Protection Act, R.S.O. 1990, Ch. E.9, ss. 7.0.1(1), 7.0.2, The Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, S.O. 2020, c. 3, Interpretation Act, R.S.O 1990, c. I.11, s. 10, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109, Rules of Civil Procedure, Rules 21, 25.08, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, R. v. Find, 2001 SCC 32, Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Elmer Driedger: Construction of Statutes (2nd ed. 1983), Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

WED Investments Limited v. Showcase Woodycrest Inc., 2022 ONCA 384

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Waiver of Conditions, Notice, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, McKee v. Montemarano, 2009 ONCA 359, High Tower Homes Corporation v. Stevens, 2014 ONCA 911

Short Civil Decisions

London District Catholic School Board v. Michail, 2022 ONCA 378

Keywords: Torts, Defamation, Anti-SLAPP, Vexatious Litigation, Canadian Charter of Rights and Freedoms, ss. 2(b), 7, 12 and 15(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 140, Veneruzzo v. Storey, 2018 ONCA 688, R. v. Reid, 2016 ONCA 524

Rieder zu Wallburg v. Plista Gmbh, 2022 ONCA 386

Keywords: Civil Procedure, Costs, Partial Indemnity

Drop and Run Inc. v. 1909703 Ontario Inc. (Integral Health Group Inc.), 2022 ONCA 375

Keywords: Real Property, Commercial Tenancies, Helping Tenants and Small Businesses Act, 2020, S.O. 2020, c. 23, Commercial Tenancies Act, R.S.O. 1990, c L.7

2056706 Ontario Inc. v. Pure Global Cannabis Inc., 2022 ONCA 381

Keywords: Bankruptcy and Insolvency, Receiverships, Contracts, Interpretation, Asset Purchase Agreements, Share Purchase Agreements, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Housen v. Nikolaisen, 2002 SCC 33

CIVIL DECISIONS

Lin v. Weng, 2022 ONCA 367

[Feldman, van Rensburg and Coroza JJ.A.]

COUNSEL:

P.H. Starkman and C. Zhang, for the appellant
F. Csathy, for the respondents

Keywords: Contracts, Insurance, Interpretation, Property, Fire, Exclusions, Statutory Interpretation, Retrospectivity, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 129.1, Hryniak v. Mauldin, 2014 SCC 7, Housen v. Nikolaisen, 2002 SCC 33, Daley v. Economical Mutual Insurance Company (2005), 206 O.A.C. 33 (C.A.); Ledcor Construction Limited v. Northbridge Indemnity Insurance, 2016 SCC 37, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, R. v. Bengy, 2015 ONCA 397, Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, Elmer A. Driedger, "Statutes: Retroactive Retrospective Reflections" (1978), 56 Can. Bar. Rev. 264, Ruth Sullivan, Statutory Interpretation, 2nd ed. (Toronto: Irwin Law, 2007), Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed. (Scarborough: Carswell, 2011), Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014)

FACTS:

The appellant's tenants burned down his property on the last day of their tenancy. They caused a fire and explosion in the basement by using a butane lighter, a stove, and a propane gas to extract marijuana resin. The appellant had asked the tenants to leave on account of the non-payment of rent. The appellant expected the tenants to move out that day and did not know they were doing anything in the basement. At the time of the fire, the appellant had a home insurance policy with Aviva General Insurance Company, respondent on the appeal. Aviva denied coverage based on two exclusion clauses in the policy: a marijuana production exclusion clause and an illegal activity exclusion clause. After the fire and while the appellant's claim was outstanding, the legislature amended the Insurance Act by adding a provision limiting the application of criminal and intentional activity exclusion clauses to the claim of a person who caused the loss or who knew about or consented to the activity that caused the loss.

The motion judge awarded summary judgment to the respondents. He found that: 1) the respondents were entitled to deny the applicability of s. 129.1 to the appellant's claim, even though they had not filed an amended statement of defence to address the s. 129.1 issue; 2) s. 129.1 does not apply retrospectively to insurance policies entered into before the date of its enactment; and 3) s. 129.1 does not apply to the marijuana exclusion clause.

ISSUES:

(1) Did...