Court Of Appeal Summaries (June 20 ' 24, 2022)

• Published date: 27 June 2022
• Subject Matter: Corporate/Commercial Law, Environment, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Real Estate and Construction, Corporate and Company Law, Contracts and Commercial Law, Environmental Law, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, Landlord & Tenant - Leases, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

These are our summaries of the civil decisions of the Ontario Court of Appeal for the week of June 20. It was a busy week.

In Elementary Teachers Federation of Ontario v. York Region District School Board, the Court determined that public school teachers are protected from unreasonable search and seizure by their principal. The principal had accessed communications between teachers that were critical of the principal, who they believed gave preferential treatment to a colleague. The comments were saved in one of the teacher's private and password-protected Google accounts. The comments formed the basis for the imposition of discipline. The Court allowed the appeal and quashed the award of the arbitrator, who had found no breach of privacy.

In Bowman v Ontario, the Court determined that the certification judge erred in dismissing the appellants' certification motion in its entirety. The Court found that it was not plain and obvious that the claim that Ontario's early termination of its basic income program constituted a breach of contract would fail. That claim disclosed a reasonable cause of action pursuant to s. 5(1)(a) of the Class Proceedings Act, and should have been certified. However, the other claims of breach of undertaking, negligence, breach of a public law duty, and breach of s. 7 of the Canadian Charter of Rights and Freedoms were rightly not certified, as they did not disclose a reasonable cause of action.

In Intact Insurance Company v Zurich Insurance Company Ltd, Intact paid for environmental remediation on behalf of its insured beyond the policy limits. It sought to recover the overpayment from others who were subject to a remediation order under section 93 of the Environmental Protection Act, and their insurer, Zurich. The Court dismissed the appeal, finding that Intact did not have a claim under section 99 of the EPA. Moreover, there was no unjust enrichment, as it was Intact's insured that was enriched, not the respondents.

In Selkirk v Ontario (Health and Long-Term Care), the appellant's husband died of an alcohol-related liver disease and was not eligible for a transplant under the transplant regime. She unsuccessfully challenged the regime. Her appeal was mostly dismissed, although her standing to represent her husband's Estate on the application and on the appeal was upheld. The Court did set aside the application judge's finding that the current transplant regime was not subject to Charter scrutiny, without affirming or reversing the application judge on this issue. In partial dissent, Justice Lauwers would not have granted the appellant standing.

In Kiselman v. Klerer, the Court confirmed that a claim to arrears of rent and damage to the premises by a residential landlord against a former tenant can only be brought in court and not before the Landlord and Tenant Board. The Landlord and Tenant Board, which has exclusive jurisdiction during the currency of the tenancy, loses all jurisdiction once the tenant vacates the premises.

Other topics covered this week included oversight of a claims process in a class proceeding, stay pending leave to appeal in the context of regulated professions (doctors), debtor-creditor and setting aside a dismissal for delay.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476

Keywords: Labour Law, Workplace Grievance, Breach of Privacy, Education Law, Administrative Law, Judicial Review, Standard of Review, Constitutional Law, Freedom from Unreasonable Search and Seizure, Canadian Charter of Rights and Freedoms, s. 8, Education Act, R.S.O. 1990, c. E.2, s. 265, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109(1), s. 24(1), R. v. Cole, 2012 SCC 53, Doré v. Barreau du Québec, 2012 SCC 12, Longueépée v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Shepherd, 2009 SCC 35, Chamberlain v. Surrey School District No. 36, 2002 SCC 86, R. v. M. (M.R.), [1998] 3 S.C.R. 393, R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406, R. v. Edwards, [1996] 1 S.C.R. 128, R. v. Tessling, 2004 SCC 67, R. v. Marakah, 2017 SCC 59, R. v. A.M., 2008 SCC 19, R. v. Plant, [1993] 3 S.C.R. 281, R. v. Jarvis, 2019 SCC 10, Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, Chris Hunt and Micah Rankin, "R. v. Spencer: Anonymity, the Rule of Law, and the Shrivelling of the Biographical Core" (2015) 61 McGill L.J. 193

Akhavan v. Taheri, 2022 ONCA 483

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Civil Procedure, Trials, Evidence, Discovery Evidence, John W. Morden & Paul M. Perell, The Law of Civil Procedure in Ontario, 4th ed., (LexisNexis: Toronto, 2020)

Philbert v. Graham , 2022 ONCA 488

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Setting Aside, Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Paulsson v University of Illinois, 2010 ONCA 21, Kudrocova v Kronberger, 2021 ONCA 563

Kiselman v. Klerer, 2022 ONCA 489

Keywords: Real Property, Residential Tenancies, Damages, Arrears of Rent, Damage to Premises, Civil Procedure, Small Claims Court, Jurisdiction, Administrative Law, Landlord Tenant and Board, Jurisdiction, Residential Tenancies Act, 2006, SO 2006 c. 17, Courts of Justice Act, RSO 1990, c. C.43, 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (Ont. C.A.), Capreit Limited Partnership v. Griffin, 2016 ONSC 5150 (Div. Ct.), Kissell v. Milosevic, 2008 CanLII 27475 (Ont. Div. Ct.), Finney v. Cepovski, 2015 CanLII 48918 (Ont. S.C.), Fong v. Lemieux, 2016 CanLII 30092 (Ont. S.C.)

Intact Insurance Company v Zurich Insurance Company Ltd., 2022 ONCA 485

Keywords: Environmental Law, Statutory Liability, Duty to Remediate, Remedies, Damages, Section 99 EPA Damages, Remediation Costs, Unjust Enrichment, Insurance Law, Indemnification, Policy Limits, Environmental Protection Act, RSO. 1990, c. E.19, ss 1(1), 3, 93, 99(1)(2)(a)(b)(4)(8), 99(3)(7)(8), 100(4), Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52, Midwest Properties Ltd. V Thordarson, 2015 ONCA 819, MVL Leasing Ltd. V CCI Group Inc., 2018 ONSC 1800, Moore v Sweet, 2018 SCC 52, Sez-A-Me-Inc. v Drewlo Holdings Inc., 2018 ONSC 7670, Rogers Communications Partnership v. Society of Composers, Authors and Music Publishers of Canada, 2016 FCA 28, Garland v Consumers' Gas Co., 2004 SCC 25, Peel (Regional Municipality) v Canada; Peel (Regional Municipality) v Ontario, [1992] 3 SCR 762, Grover v Hodgins, 2011 ONCA 72, Birkett v Astris Energi Inc. (2004), 45 BLR (3d) 293 (Ont. CA), Accuworx Inc. v Enroute Imports Inc., 2016 ONCA 161

Bowman v. Ontario, 2022 ONCA 477

Keywords: Crown Liability, Breach of Contract, Breach of Undertaking, Torts, Negligence, Breach of a Public Law Duty, Charter Claims, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Appeals, Standard of Review, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5(1), Crown Liability and Proceedings Act, 2019, R.S.C., 1985, c. C-50, ss 11(4), Canadian Charter of Rights and Freedoms, ss 7, 24(1), Bowman et al. v. Her Majesty the Queen, 2019 ONSC 1064, 58 Admin. L.R. (6th) 327 (Div. Ct.)., Hollick v. Toronto (City), 2001 SCC 68, Pioneer Corp. v. Godfrey, 2019 SCC 42, Shah v. LG Chem Ltd., 2018 ONCA 819, Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ontario Public Service Employees Union v. Ontario (2005), 13 C.P.C. (6th) 178 (Ont. S.C.), Nelson (City) v. Marchi, 2021 SCC 41, Francis v. Ontario, 2021 ONCA 197, Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337, McGee v. Farazli, 2020 ONSC 7066 (Div. Ct.)

Selkirk v Ontario (Health and Long-Term Care), 2022 ONCA 478

Keywords: Health Law, Constitutional Law, Civil Procedure, Parties, Standing, Self-Represented Litigant, Canadian Charter of Rights and Freedoms, sections 7, 12, & 15, Rules of Civil Procedure, Rules 2.03, 9.01 & 15.01, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138, Nova Scotia (Board of Censors) v. McNeil, [1976] 2 S.C.R. 265, Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575, Ernst v Alberta Energy Regulator, 2017 SC 1, Bogaerts v. Ontario (Attorney General), 2019 ONCA 876, Barendregt v. Grebliunas, 2022 SCC 22, Allen v. Alberta, 2015 ABCA 277, Grant v. Winnipeg Regional Health Authority, 2015 MBCA 44, Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, R. v. Smith, 2015 SCC 34, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, R. v. Palmer, [1980] 1 S.C.R. 759, Public School Boards' Association of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, R. v. Powley (2001), 53 O.R. (3d) 35 (C.A.), Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.)

Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 480

Keywords: Civil Procedure, Class Proceedings, Claims Process, Administration, Review, Class Proceedings Act, 1992, SO 1992, c 6, s 12, Canada (Attorney General) v Fontaine, 2017 SCC 47, BancroftSnell v Visa Canada Corp., 2016 ONCA 896

Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONCA 494

Keywords: Administrative Law, Judicial Review, Regulated Professions, Physicians and Surgeons, Competence, Professional Misconduct, Civil Procedure, Leave to Appeal, Stay Pending Leave, Health Professions Procedural Code, being Schedule 2...