Court Of Appeal Summaries (June 13 ' 17, 2022)

• Published date: 21 June 2022
• Subject Matter: Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Discrimination, Disability & Sexual Harassment, Retirement, Superannuation & Pensions, Employee Benefits & Compensation, Family Law, Constitutional & Administrative Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Human Rights, 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 June 13, 2022.

In Ontario (Health) v Association of Ontario Midwives the Human Rights Tribunal of Ontario found that the Ministry of Health and Long-Term Care (the MOH) failed to fairly compensate midwives due to systemic gender discrimination. The Divisional Court upheld the Adjudicator's decision on judicial review. The Court of Appeal dismissed an appeal from the Divisional Court's decision.

In CHU de Québec-Université Laval v Tree of Knowledge International the Court released yet another decision on the application of the rule Handley Estate requiring parties to immediately disclose partial settlement agreements that change the landscape of the litigation, or risk having their claim against the non-settling defendants dismissed.

The Court set out the following principles drawn from its previous decisions on the abuse of process that arises from a failure to immediately disclose an agreement which changes the litigation landscape:

a) There is a "clear and unequivocal" obligation of immediate disclosure of agreements that "change entirely the landscape of the litigation". They must be produced immediately upon their completion.

b) The disclosure obligation is not limited to pure Mary Carter or Pierringer agreements. The obligation extends to any agreement between or amongst the parties "that has the effect of changing the adversarial position of the parties into a co-operative one" and thus changes the litigation landscape.

c) The obligation is to immediately disclose information about the agreement, not simply to provide notice of the agreement, or "functional disclosure".

d) Both the existence of the settlement and the terms of the settlement that change the adversarial orientation of the proceeding must be disclosed.

e) Confidentiality clauses in the agreements in no way derogate from the requirement of immediate disclosure.

f) The standard is "immediate", not "eventually" or "when it is convenient".

g) The absence of prejudice does not excuse a breach of the obligation of immediate disclosure.

In this particular case, the Court concluded that the motion judge did not err in refusing to dismiss the action for non-disclosure. Adequate and timely disclosure of the settlement had been made.

Other topics covered this week included summary judgment on a claim for breach of an agreement of purchase and sale of land, equalization of net family property (pensions), assessment of solicitors' accounts and stay pending appeal to the Supreme Court.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Ilic v Ducharme Fox LLP (Ducharme Weber LLP) , 2022 ONCA 463

Keywords: Contracts, Solicitor and Client, Civil Procedure, Assessment of Solicitor's Accounts, Solicitors Act, RSO 1990, c S15, s. 3(b) and s. 4(1), Rules of Civil Procedure, Rule 2.02(b), Davies, Ward & Beck v Union Industries Inc (2000), 48 OR (3d) 794 (CA), Price v Sonsini, 60 OR (3d) 257 (2002) (CA), Clatney v Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, Lawrence v International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, Bridgeland Riverside Community Assn v Calgary (City), 1982 ABCA 138, Speciale Law Professional Corp v Shrader Canada Ltd, 2015 ONCA 856

Tsui v Zhuoqi, 2022 ONCA 464

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Bad Faith, Damages, Summary Judgment, Bilotta v Booth, 2020 ONCA 522

CHU de Québec-Université Laval v Tree of Knowledge International Corp, 2022 ONCA 467

Keywords: Civil Procedure, Settlement Agreements, Disclosure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 19(1)(b), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Poirier v. Logan, 2021 ONSC 163, Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Stamatopoulos v. Harris, 2014 ONSC 6313, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Johnson v. Ontario, 2021 ONCA 650, McClintock v. Karam, 2017 ONCA 277, Ontario v. Nanji, 2020 ONCA 591, Aecon Buildings v. Brampton (City), 2010 ONCA 773, Ontario v. Lipsitz, 2011 ONCA 466, Housen v. Nikolaisen, 2002 SCC 33, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, Stamatopoulos v. Regional Municipality of Durham, 2014 ONSC 6313, K.J. v. The Regional Municipality of Halton, 2022 ONSC 2199, Endean v. St. Joseph's General Hospital, 2019 ONCA 181, Aecon Buildings v. Stephenson Engineering Ltd., 2011 SCC 33, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Laudon v. Roberts, 2009 ONCA 383

Talotta v Talotta, 2022 ONCA 474

Keywords: Family Law, Marriage Contracts, Separation Agreements, Equalization of Net Family Property, Pensions, Family Law Act, RSO 1990, c F3, s. 5, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Housen v Nikolaisen, 2002 SCC 33

Ontario (Health) v Association of Ontario Midwives, 2022 ONCA 458

Keywords: Labour and Employment, Administrative Law, Judicial Review, Standard of Review, Human Rights, Systemic Discrimination, Gender Discrimination, Compensation, Civil Procedure, Appeals, Human Rights Code, RSO 1990, c H.19, Human Rights Code Amendment Act, 2006, SO 2006, c. 30, s. 5, s. 45, Fraser v Canada (Attorney General), 2020 SCC 28, Canadian National Railway Co v Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18, Shaw v Phipps, 2010 ONSC 3884, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, R v Owen, 2003 SCC 33, Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, Dunsmuir v New Brunswick, 2008 SCC 9

Ernst & Young Inc v Aquino, 2022 ONCA 472

Keywords:Bankruptcy and Insolvency, Transfers Under Value, Civil Procedure, Appeals, Stay Pending Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 269, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Rules of Civil Procedure, Rule 63.01(1), Ting (Re), 2019 ONCA 768, Canadian Dredge & Dock Co v The Queen, [1985] 1 S.C.R. 662, Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63

Short Civil Decisions

ALB v Durham Children's Aid Society, 2022 ONCA 466

Keywords: Family Law, Child Protection, Civil Procedure, Frivolous, Vexatious and Abuse of Process, Child, Youth and Family Services Act, 2017, ss. 87(8) and 87(9) and 142(3), Scaduto v The Law Society of Upper Canada, 2015 ONCA 733, Lochner v Ontario Civilian Police Commission, 2020 ONCA 720

Anderson Learning Inc (Bond International College) v Birchmount Howden Property Holdings Inc, 2022 ONCA 469

Keywords: Contracts, Real Property, Commercial Leases, Options to Renew, 120 Adelaide Leaseholds Inc v Oxford Properties Canada Ltd, [1993] OJ No 2801 (CA), Housen v Nikolaisen, 2002 SCC 33

CIVIL DECISIONS

Ilic v Ducharme Fox LLP (Ducharme Weber LLP), 2022 ONCA 463

[Lauwers J.A.]

Counsel:

S. Dewart and M. Bélanger, for the appellant

P. J. Ducharme, for the respondents

Keywords: Contracts, Solicitor and Client, Civil Procedure, Assessment of Solicitor's Accounts, Solicitors Act, RSO 1990, c S15, s. 3(b) and s. 4(1), Rules of Civil Procedure, Rule 2.02(b), Davies, Ward & Beck v Union Industries Inc (2000), 48 OR (3d) 794 (CA), Price v Sonsini, 60 OR (3d) 257 (2002) (CA), Clatney v Quinn Thiele Mineault Grodzki LLP, 2016 ONCA 377, Lawrence v International Brotherhood of Electrical Workers (IBEW) Local 773, 2017 ONCA 321, Bridgeland Riverside Community Assn v Calgary (City), 1982 ABCA 138, Speciale Law Professional Corp v Shrader Canada Ltd, 2015 ONCA 856

facts:

The application judge dismissed the appellant's application for an order allowing the assessment of the respondent solicitor's accounts to continue before an Assessment Officer.

The appellant retained P. Ducharme to represent him on criminal charges. The nature of the retainer, that is, whether the parties had agreed to a block fee or an hourly fee, was disputed. The appellant entered a guilty plea in accordance with a plea bargain. The respondents delivered interim accounts and a final account to the appellant.

The appellant took out an order for assessment of the final account and another for the assessment of the interim accounts. An Assessment Officer heard the evidence on the assessment and then a year later, the Assessment Officer asked the parties for submissions on the issue of his jurisdiction because the order for assessment had been issued by the registrar after the 30-day statutory window. The respondents argued that the Assessment Officer was without jurisdiction and that the assessment order was accordingly a nullity.

More than a year later, the Assessment Officer accepted the respondents' argument and found that he did not have jurisdiction to conduct the assessment. He then stayed the matter, pending direction from the Superior Court.

The appellant applied to the Superior Court for an order allowing the assessment proceeding before the Assessment Officer to continue and for directions. In the alternative, the appellant sought an order nunc pro tunc referring the respondents' bills to a new assessment under s. 4(1) of the Solicitors Act.

The application judge declined to exercise his jurisdiction to allow the assessment to proceed. He found that the appellant was not caught off guard by the requisition deadline of 30 days, because he had been represented by counsel who was alerted to the jurisdictional issue by the first Assessment Officer in 2010. The appellant's failure to cure the procedural defect in the...