Court Of Appeal Summaries (July 18, 2022 ' July 22, 2022)

Published date27 July 2022
Subject MatterCorporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Real Estate and Construction, Energy and Natural Resources, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Contract of Employment, Family Law, Arbitration & Dispute Resolution, Construction & Planning, Real Estate, Securities, Civil Law, Water
Law FirmBlaney McMurtry LLP
AuthorMr John Polyzogopoulos

It was another busy week for the Court of Appeal of Ontario. Here are this week's summaries of the civil decisions released for the week of July 18, 2022.

Irwin v. Protiviti, is an employment law case in which the employee brought an action against its employer for constructive dismissal. The employee ignored the terms of her employment contract which provided that disputes of this nature were to be submitted to arbitration. The motion judge agreed with the employer that the dispute fell within the jurisdiction of the arbitrator in interpreting the employment contract's arbitration clause. The action was stayed in favour of arbitration. The plaintiff appealed. The Court agreed with the motion judge and confirmed the general rule that challenges to an arbitrator's jurisdiction must be resolved first by the arbitrator.

In Wong v Pretium Resources Inc., the Court was faced with a securities law issue involving a possible misrepresentation through an omission of material fact in Pretium's disclosure obligations to the public under securities law. The Court dismissed the appeal from a summary judgment dismissing the action on the basis that the concerns expressed by a firm retained by Pretium to advise on its mining project did not constitute a material fact and, therefore, there was no misrepresentation by omission when Pretium did not make the consultant's opinion known to the market. The motion judge concluded that the consultant's advice was wrong, and therefore it was not material information that required disclosure. The Court found no palpable and overriding error with the motion judge's factual findings warranting appellate intervention.

In Ferguson v. Ferguson, the Court dismissed the appeal in a family law case that proceeded by way of an uncontested trial after the appellant's pleading had been struck for failure to comply with his disclosure obligations.

In Blackwell v. Genier, the appellants owned land at the bottom of Silver Lake, and tried to prevent others from navigating the waters over the submerged land that they owned. The Court held that the application judge erred in finding that the definition of "navigable waters" in the CNWA applied to the dispute. The Court allowed the appeal but did not decide the issue of whether the appellants had the right to prevent others from navigating their vessels on water under which they owned the land. The issues had not been properly framed, and the case is of significance to a great many landowners and the Crown in Ontario. The Court did not have the benefit of submissions from the Crown and other stakeholders. The appellants were therefore given the opportunity to recast the issues and involve other affected stakeholders. In dissent, Paciocco J.A. agreed with the majority that the application judge had erred, but he would have dismissed the appeal and action, and not given the appellants the right to recast their claims and the issues.

Wishing everyone an enjoyable weekend.


Table of Contents

Civil Decisions

Irwin v. Protiviti, 2022 ONCA 533

Keywords: Contracts, Employment, Constructive Dismissal, Arbitration Clauses, Enforceability, Unconscionability, Civil Procedure, Jurisdiction, Procedural Fairness, Employment Standards Act, 2000, S.O. 2000, c. 41, Human Rights Code, R.S.O. 1990, c. H.19, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(1), s. 7(2)(2), s. 7(6), s. 17(1), Haas v. Gunasekaram, 2016 ONCA 744, Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, Uber Technologies Inc. v. Heller, 2020 SCC 16, Rogers Wireless Inc. v. Muroff, 2007 SCC 35

Blackwell v. Genier , 2022 ONCA 539

Keywords: Real Property, Boundaries, Riparian Rights, Statutory Interpretation, Canadian Navigable Waters Act, R.S.C. 1985, c. N-22 [the "CNWA"], Beds of Navigable Waters Act, R.S.O. 1990, c. B-4 [the "BNWA"], Public Lands Act, R.S.O. 1990, c. P.43, Courts of Justice Act, R.S.O. 1990, c. C.43, Attorney-General of Canada v. Higbie, [1945] S.C.R. 385, Erik v. McDonald, 2019 ABCA 217, Victorian Townhomes (Burlington) II Limited Partnership v. Mutual Trust Co., [1995] O.J. No. 1844 (C.A.), Solosky v. The Queen, [1980] 1 S.C.R. 821, Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475, Canoe Ontario v. Reed (1989), 69 O.R. (2d) 494 (Ont. H.C.), Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Interpretation Act, R.S.C. 1985, c. I-21, Wilk v. Arbour, 2017 ONCA 21, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Hrushka v. Canada (Minister of Foreign Affairs), 2009 FC 69, 340 F.T.R. 81, Friends of the Oldman River Society v. Canada (Ministry of Transport), [1992] 1 S.C.R. 3, R. v. D.L.W., 2016 SCC 22, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, Canada (Prime Minister) v. Khadr, 2010 SCC 33, Attorney-General of Canada v. Higbie, [1945] S.C.R. 385, Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, Ruth Sullivan, The Construction of Statutes, 7th ed. (Toronto: LexisNexis, 2022)

Unicity Holdings Ltd. v. Great British Vape Co., 2022 ONCA 545

Keywords: Contracts, Interpretation, Franchise Agreements, Settlement Agreements, Intellectual Property, Trademarks

Wong v. Pretium Resources Inc., 2022 ONCA 549

Keywords: Securities Law, Misrepresentation, Material Facts, Civil Procedure, Class Proceedings, Summary Judgment, Appeals, Standard of Review, Securities Act, RSO 1990, c S 5, s 1(1), 138.3, 138.8, 138.4(6), Real Estate Act, RSBC 1996, c., 397, s 75, Sharbern Holding Inc. v Vancouver Airport Centre Ltd., 2011 SCC 23, Inmet Mining Corp. v Homestake Canada Inc., 2003 BCCA 610, Amirault v Westminer Canada Ltd. (1993), 120 NSR. (2d) 91, Housen v Nikolaisen, 2002 SCC 33, Mask v Silvercorp Metals Inc., 2016 ONCA 641, A.M. Gold Inc. v Kaizen Discovery Inc., 2022 BCCA 21, Industries Inc. v. Northway Inc., 426 U.S. 438 (1976), Kerr v Danier Leather Inc., 2007 SCC 44, Peters v SNC-Lavalin Group Inc., 2021 ONSC 5021, Cornish v Ontario Securities Commission, 2013 ONSC 1310, Pacific Coast Coin Exchange of Canada Ltd. v. Ontario (Securities Commission), [1978] 2 SCR 112, Theratechnologies Inc. v 121851 Canada Inc., 2015 SCC 18, Rahimi v SouthGobi Resources Ltd., 2017 ONCA 719, Maurice v. Alles, 2016 ONCA 287, Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150, Harris v. Leikin Group Inc., 2014 ONCA 479, Miller v. FSD Pharma, Inc., 2020 ONSC 4054

Ferguson v. Ferguson , 2022 ONCA 543

Keywords: Family Law, Support, Imputing Income, Property, Equalization of Net Family Property, Vesting Orders, Matrimonial Home, Civil Procedure, Disclosure, Striking Pleadings, Uncontested Trials, Sufficiency of Reasons, Family Law Rules, O. Reg. 114/99, rr 1(8), 1(8.1), 2(3), & 13, Martin v. Watts, 2020 ONCA 406, Kovachis v. Kovachis, 2013 ONCA 663, Canada in Colucci v. Colucci, 2021 SCC 24, R. v. W.O., 2020 ONCA 392, Dovbush v. Mouzitchka, 2016 ONCA 381, R. v. Sheppard, 2002 SCC 26

Short Civil Decisions

Paul v. Madawaska Valley (Township), 2022 ONCA 542

Keywords: Costs

Leaf Homes Limited v. Khan , 2022 ONCA 547

Keywords: Costs

Aquino v. Aquino , 2022 ONCA 541

Keywords: Civil Procedure, Publication Bans, Sealing Orders, Appeals, Jurisdiction, Orders, Final or Interlocutory, Bankruptcy and Insolvency Act, 1985, c. B-3, Companies' Creditors Arrangement Act, 1985, c. C-36, Courts of Justice Act, s. 6(1), Paulpillai Estate v. Yusuf, 2020 ONCA 655, PI v XYZ, 2021 ONCA 901

1775997 Ontario Inc. v. Jodamar Properties Ltd, 2022 ONCA 540

Keywords: Contracts, Real Property, Construction, Delay, Damages, Interest, Civil Procedure, Appeals

Liu v. Qiu , 2022 ONCA 544

Keywords: Civil Procedure, Orders, Varying or Setting Aside, Rules of Civil Procedure, Rules 37.14, 59.06

Ledsham v. Air Canada Pilots Association , 2022 ONCA 550

Keywords: Civil Procedure, Orders, Varying or Setting Aside, Arbitration Awards, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, Rule 2.1, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733

Galt Machining & Plating Inc. v. MLS Group Ltd., 2022 ONCA 546

Keywords: Contracts, Real Property, Commercial Leases, Contracts, Agreements of Purchase and Sale of Land, Unlawful Termination, Repudiation, Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada (2006), 270 D.L.R. (4th) 181 (Ont. C.A.)

2257573 Ontario Inc. v. Furney , 2022 ONCA 552

Keywords: Contracts, Real Property, Civil Procedure, Appeals, Costs


CIVIL DECISIONS

Irwin v. Protiviti, 2022 ONCA 533

[Benotto, Miller and Copeland JJ.A.]

Counsel:

C. Foulon, K. Kais-Prial and B. Hassibi, for the appellant

J. D. Heeney and J. Burke, for the respondents

Keywords: Contracts, Employment, Constructive Dismissal, Arbitration Clauses, Enforceability, Unconscionability, Civil Procedure, Jurisdiction, Procedural Fairness, Employment Standards Act, 2000, S.O. 2000, c. 41, Human Rights Code, R.S.O. 1990, c. H.19, Arbitration Act, 1991, S.O. 1991, c. 17, s. 7(1), s. 7(2)(2), s. 7(6), s. 17(1), Haas v. Gunasekaram, 2016 ONCA 744, Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, Uber Technologies Inc. v. Heller, 2020 SCC 16, Rogers Wireless Inc. v. Muroff, 2007 SCC 35

facts:

The appellant brought an action against the respondent for constructive dismissal notwithstanding that the employment contract required the appellant to bring any claim relating to termination to arbitration The arbitration clause further provided that awards of cost and punitive damages would not be available in arbitration.

The respondent responded to the appellant's claim by bringing a motion to stay the action so the dispute could be referred to arbitration. The appellant defended against the motion on the basis that the arbitration clause was invalid due to unconscionability and for inconsistency with the Employment Standards Act ("ESA") and the Human Rights Code ("HRC").

The appellant appealed the decision of the motion judge who held that the validity of the arbitration clause was itself a matter for arbitration and...

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