Court Of Appeal Summaries (June 6, 2022 ' June 10, 2022)

Published date15 June 2022
Subject MatterCorporate/Commercial Law, Employment and HR, Insurance, Litigation, Mediation & Arbitration, Corporate and Company Law, Contracts and Commercial Law, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals, Insurance Laws and Products, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Libel & Defamation, Franchising, Civil Law
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

Good evening.

Following are this week's summaries of the Court of Appeal for Ontario for the week of June 6, 2022.

In Antchipalovskaia v Guestlogix Inc, the Court determined that the motion judge erred in treating the respondent's employment with the appellant from 2011 to 2019 as one continuous period of employment for the purpose of determining her entitlement to common law notice of termination of her employment. Her employment had been terminated following her employer seeking protection under the CCAA, and a release of her claims was ordered by the court in that proceeding. She was then re-hired, but her service prior to the CCAA proceeding should not have counted towards her common law notice entitlement.

The Court also allowed the appeal in another wrongful dismissal case, Rahman v. Cannon Design Architecture Inc. In that case, the motion judge was found to have erred in applying the termination provisions of the employment agreements, given that they violated the Employment Standards Act. It was also an error not to find that a group of companies were the plaintiff's common employer, and that therefore the corporations were jointly liable to the plaintiff.

Other topics covered this week included judicial review in the statutory accident benefits context, limitation periods and boomerang summary judgment in the solicitor's negligence context, rescission in the franchise context, 'anti-SLAPP', expediting appeals in the forum non conveniens context, and extension of time to perfect an appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Paul v Madawaska Valley (Township), 2022 ONCA 444

Keywords: Torts, Defamation, Misfeasance of Public Office, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, section 137.1, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, Bent v Platnick, 2020 SCC 23, Gutowski v Clayton, 2014 ONCA 921

Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446

Keywords: Contracts, Insurance, Statutory Accident Benefits, Administrative Law, Ontario License Appeal Tribunal, Appeals, Judicial Review, Insurance Act, RSO 1990, c. I.8, 280(3), Licence Appeal Tribunal Act, 1999, S.O. 1999, c 12, Sched G, Judicial Review Procedure Act, RSO 1990, c J 1, 2(1), Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996, O Reg 403/96, Smith v Co-operators General Insurance Co., 2002 SCC 30, Strickland v. Canada (Attorney General), 2015 SCC 37, Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3, Shearer v Oz, 2021 ONSC 7844

Chuang v. Fogler Rubinoff LLP, 2022 ONCA 440

Keywords: Contracts, Solicitor and Client, Torts, Solicitor's Negligence, Civil Procedure, Limitations Periods, 'Appropriate Means', Summary Judgment, Boomerang Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(iv), Chuang v. Toyota Canada Inc., 2015 ONSC 885, Chuang v. Toyota Canada Inc., 2016 ONCA 584, Chuang v. Toyota Canada Inc., 2016 ONCA 852, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 448

Keywords: Contracts, Insurance, Coverage, Civil Procedure, Jurisdiction, Forum Non Conveniens, Comity, Appeals, Expediting, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 12.1.3, James Bay Resources Ltd. v. Mak Mera Nigeria Ltd., 2015 ONCA 781, Teck Cominco Metals Ltd. v Lloyd's Underwriters, 2009 SCC 11, McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng'g Co., 263 A.2d 281 (Del. 1970), Vale Canada Limited v Royal & Sun Alliance Insurance Company of Canada, 2021 ONSC 6377

Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451

Keywords: Contracts, Employment, Wrongful Dismissal, Termination Without Cause, Reasonable Notice, Statutory Termination Pay, Enforceability, Illegality, Corporations, Common Employer Doctrine, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01 s. 2(1), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, Plester v. Polyone Canada Inc., 2011 ONSC 6068, aff'd 2013 ONCA 47, Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538, Waksdale v. Swegon North America Inc., 2020 ONCA 391, leave to appeal refused, [2020] S.C.C.A. No. 292, Rossman v. Canadian Solar Inc., 2019 ONCA 992, O'Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, leave to appeal refused, [2021] S.C.C.A. No. 316

Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455

Keywords: Civil Procedure, Appeals, Perfection, Extensions of Time, Orders, Injunctions, Enforcement, Contempt, Carey v. Laiken, 2015 SCC 17, Town of Caledon v. Darzi Holdings Ltd., 2021 ONSC 985, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 17, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. v. Joanisse (1995), 102 C.C.C. (3d) 35, R. v. G.D.B., 2000 SCC 22, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, Dickie v. Dickie, 2007 SCC 8

Antchipalovskaia v Guestlogix Inc., 2022 ONCA 454

Keywords: Contracts, Employment, Wrongful Dismissal, Termination Without Cause, Reasonable Notice, Damages, Companies' Creditors Arrangement Act, RSC, 1985, c C-36, Employment Standards Act, 2000, SO 2000, c 41, s. 9 (1), Courts of Justice Act, RSO 1990, c C 43, s. 134(1)(a), Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), Manthadi v ASCO Manufacturing, 2020 ONCA 485, Addison v M Loeb Ltd (1986), 25 DLR (4th) 151 (Ont CA), Carpenter v Brains II Canada Inc, 2015 ONSC 6224, aff'd 2016 ONSC 3614 (Div Ct), Minott v O'Shanter Development Co (1999), 42 OR (3d) 321 (CA), McNevan v AmeriCredit Corp, 2008 ONCA 846, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158

2483038 Ontario Inc. v. 2082100 Ontario Inc. , 2022 ONCA 453

Keywords: Contracts, Franchise Agreements, Franchise Law, Remedies, Rescission, Informed Investment Test, Franchisors Associates, Personal Liability, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Sovereignty Investment Holdings, Inc. v. 9127-6907 Quebec Inc. (2008), 303 D.L.R. 4th) 515 (Ont. S.C.); Hi Hotel Limited Partnership v. Holiday Hospitality Franchising Inc., 2008 ABCA 276, 2619506 Ontario Inc. v. 2082100 Ontario Inc., 2021 ONCA 702, 4287975 Canada Inc. v. Imvescor Restaurants Inc., 2009 ONCA 308, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016)

Short Civil Decisions

Fisher v Soroka, 2022 ONCA 442

Keywords: Contracts, Real Property, Mortgages, Remedies, Foreclosure, Relief from Forfeiture, Civil Procedure, Default Judgments, Setting Aside, Winters v Hunking, 2017 ONCA 909, Intact Insurance Co. v Kisel, 2015 ONCA 205, Mountain View Farms Ltd. v McQueen, 2014 ONCA 194

Toronto-Dominion Bank v Overland R.N.C. Inc., 2022 ONCA 447

Keywords: Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, Dickinson v Royal Bank of Canada, [1976] 2 S.C.R. 834


Paul v Madawaska Valley (Township), 2022 ONCA 444

[Tulloch, Lauwers and Paciocco JJ.A.]


J.P.R. Cassan and T.J. Harmar, for the appellants

J. Safayeni and K. Bernofsky, for the respondents

Keywords: Torts, Defamation, Misfeasance of Public Office, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, section 137.1, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4th) 1, Bent v Platnick, 2020 SCC 23, Gutowski v Clayton, 2014 ONCA 921


The appellants brought an unsuccessful 'anti-SLAPP' motion for an order dismissing the respondent's action under section 137.1 of the Courts of Justice Act.

The individual respondents were previously involved in litigation with the Township, including a Human Rights Tribunal of Ontario (HRTO) claim. After the HRTO settlement, one of the respondents, Mr. P, wrote to the Township advising them to bring an action against its previous solicitors to recover the costs spent defending rather than mediating the HRTO action. The Township's counsel wrote an opinion letter to the Township advising it against bringing an action, noting that he was unable to verify that Mr. P was ever called to the Ontario Bar or that he had practiced law in Canada. The opinion letter was discussed at a Town Council meeting, where Council waived solicitor-client privilege.

Council passed a resolution, confirming a by-law accepting counsel's recommendations. Mr. P forwarded proof of his call to the Ontario Bar and demanded an apology and that the Township donate to a not-for-profit organization. The respondents then sued the appellants for defamation and misfeasance in public office. The appellants argued that the action arose from expressions relating to public interest and put several defences in play in their motion materials. The motion judge dismissed the appellants' motion to dismiss the respondents' action. The motion judge found that the claim was in relation to statements that were 'expressions' within the meaning of section 137.1(2), and that the expressions related to matters of public interest because the public has a genuine stake in knowing about matters pertaining to Town Council.

The motion judge further found that the respondents had met their burden under section 137.1(4)(a)(i) and (ii), both of which are required in order for an anti-SLAPP motion to be dismissed. The respondents were able to show that the claims had a prospect of success and that...

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