Court Of Appeal Summaries (July 25, 2022 ' July 29, 2022)

• Published date: 02 August 2022
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Criminal Law, Insolvency/Bankruptcy/Re-structuring, Debt Capital Markets, Financial Services, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Insurance Laws and Products, Constitutional & Administrative Law, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Food and Drugs Law, White Collar Crime, Anti-Corruption & Fraud, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the decisions released from the Court of Appeal for Ontario for the week of July 25, 2022. The Court was busy before its long weekend including one lengthy substantive case released.

Barker v Barker involved an action brought by 28 respondents against the Government of Ontario and the Physicians who were the Clinical Directors of Oak Ridge maximum security psychiatric facility. The 28 respondents were involuntarily admitted to Oak Ridge and held in the Social Therapy Unit ("STU") during the periods between 1966 and 1983. Their claims included being subjected to inhumane treatment such as psychological and physical abuse as a result of three STU programs. The Court found that: 1) the trial judge did not err in finding that Ontario and the Physicians were liable for breach of fiduciary duty; 2) the trial judge erred in holding that the Physicians were liable for the tort of assault and battery; 3) the trial judge did not err in concluding that the respondent's claims were not statute barred; and 4) the trial judge made a palpable and overriding factual error in his assessment of four respondents' claims. The Court declined to disturb the quantum of damages but varied the treatment of pre-judgment interest, noting the sui generis nature of the case.

In Stevenhaagen Estate v Kingston General Hospital two doctors were found liable for not consulting a cardiovascular surgeon after a complication had occurred during heart surgery of the respondent patient, who suffered extensive injuries as a result. The Court dismissed the appeal and found that the trial judge did not err in its standard of care and causation analysis. The Court agreed that by failing to consult with a cardiovascular surgeon in a timelier manner, the appellants breached their duty to the respondent and were liable for the resulting injuries.

In Yanic Dufresne Excavation Inc v Saint Joseph Developments Ltd, the appellant appealed an order varying a default judgment to include a declaration that the judgment debt survived bankruptcy pursuant to s. 178(1)(d) of the BIA because it arose out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity. The Court found that the motion judge did not err in relying upon extrinsic evidence to make a fresh finding of fact, and that the statement of claim was sufficiently particularized to ground a claim for misappropriation while acting in a fiduciary capacity.

MOS MortgageOne Solutions Ltd v Heidary was another case under s. 178.

In Sorbam Investments Ltd v Litwack, the Court considered the appeal of 1129292 Ontario Limited, a company which owned a property that was found to have leaked contaminants to a neighbouring property at trial. On appeal, the Court found the appellant had not pleaded or led evidence to support novel arguments raised. The Court ultimately dismissed the appeal and found that the appellant advanced a fundamentally different case on appeal to that which was advanced at trial.

In Cheng v Grigoras, the Court determined that the motion judge did not err in concluding that the debt in the subscription agreement could only be paid by recourse to the assets listed in Appendix A of the agreement.

In Dominion of Canada General Insurance Company v Ridi' the issue of whether HST can be included in the computation of the maximum amounts of attendant care benefits payable by the respondent was addressed. The Court found that the HST payable for attendant care services was an "attendant care benefit" which was subject to the maximum limits in s. 19 of the Statutory Accident Benefits Schedule.

We wish everyone a fun and safe long weekend.

Table of Contents

Civil Decisions

Sorbam Investments Ltd v Litwack, 2022 ONCA 551

Keywords: Real Property, Environmental Law, Negligence, Nuisance, Damages, Environmental Protection Act, R.S.O. 1990, c. E.19, s 99, Courts of Justice Act, R.S.O. 1990, c. C.43, s 130, Kaiman v. Graham, 2009 ONCA 77, Frohlich v. Ferraro, 2017 ONCA 978, Stellarbridge Management Inc. v. Magna International (Canada) Inc. (2004), 71 O.R. (3d) 263 (C.A.), Sorbam Investments Ltd. v. Litwack, 2017 ONSC 706

Yanic Dufresne Excavation Inc v Saint Joseph Developments Ltd, 2022 ONCA 556

Keywords: Bankruptcy and Insolvency, Claims Surviving Bankruptcy, "Fraud, Embezzlement, Misappropriation or Defalcation while Acting in a Fiduciary Capacity", Breach of Contract, Breach of Trust, Unjust Enrichment, Civil Procedure, Default Judgments, Setting Aside, Evidence, Admissibility, Extrinsic Evidence, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(d), Rules of Civil Procedure, Rules 59.06(2) & 25.06(8), Simone v. Daley (1999), 43 O.R. (3d) 511 (C.A.), Lawyers' Professional Indemnity Company v. Rodriguez, 2018 ONCA 171, H.Y. Louie Co. Limited v. Bowick, 2015 BCCA 256, Cruise Connections Canada v. Szeto, 2015 BCCA 363, Royal Bank of Canada v. Korman, 2010 ONCA 63, Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc., 2015 ONCA 465, Dugas v. Gaudet et al., 2016 NBCA 19

MOS MortgageOne Solutions Ltd v Heidary, 2022 ONCA 561

Keywords: Bankruptcy and Insolvency, Claims Surviving Bankruptcy, Default Judgement, "Fraud, Embezzlement, Misappropriation or Defalcation while Acting in a Fiduciary Capacity", Fraud, Breach of Trust, Breach of Contract, Unjust Enrichment, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 178(1)(e), Rules of Civil Procedure, Rule 25.06(8), F. Williams Logging Co. v. Roethel (1995), 58 B.C.A.C. 84, Lawyers' Professional Indemnity Company v. Rodriguez, 2018 ONCA 178, McAteer v. Billes, 2007 ABCA 137, H.Y. Louie Co. Limited v. Bowick, 2015 BCCA 256, Garlicki (Bankrupt), Re, 2010 MBCA 73, Bannerman Lumber Ltd. v. Goodman, 2021 MBCA 13

Stevenhaagen Estate v Kingston General Hospital, 2022 ONCA 560

Keywords: Torts, Negligence, Medmal, Standard of Care, Duty to Consult, Causation, Clements v Clements, 2012 SCC 32, Sacks v Ross, 2017 ONCA 773, Salter v Hirst, 2011 ONCA 609, Uribe v Tsandelis, 2021 ONCA 377

Cheng v Grigoras, 2022 ONCA 557

Keywords: Contracts, Interpretation, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, Breach, Rules of Civil Procedure, Rule 59.03(4), Courts of Justice Act, R.S.O. 1990, c. C.43, s 134(1), Hamilton v. Open Window Bakery, 2004 SCC 9, Duong v. NN Life Insurance Company of Canada (2001), 141 O.A.C. 307 (C.A.)

Dominion of Canada General Insurance Company v Ridi, 2022 ONCA 564

Keywords: Administrative Law, Standard of Review, Correctness, Contracts, Interpretation, Insurance, Accident Benefits, Statutory Interpretation, Statutory Accident Benefits Schedule, O. Reg. 34/10, Part III, Insurance Act, R.S.O. 1990, c. I.8. s. 268, Legislation Act, 2006, S.O. 2006 c. 21, Sched. F, s. 56, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd, (Re), [1998] 1 SCR 27, Tomec v Economical Mutual Insurance Company, 2019 ONCA 882, Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42, Westminster Bank Ltd v Zang, [1966] AC 182 (HL), CanadianOxy Chemicals Ltd v Canada (Attorney General), [1999] 1 SCR, R v Zeolkowski, [1989] 1 SCR 1378, Thomson v Canada, [1992] 1 SCR 385

Barker v Barker, 2022 ONCA 567

Keywords: Breach of Fiduciary Duty, Torts, Assault, Battery, and Intentional Infliction of Emotional Distress, Crown Liability, Crown Immunity, Breach of Statutory Duty, Statutory Interpretation, Damages, General and Aggravated Damages, Punitive Damages, Pre-judgement Interest, Defences, Ex Turpi Causa, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s 24, s 16, Mental Health Act, R.S.O. 1970, c. 269, Mental Hospitals Act, R.S.O. 1960, c. 236; R.S.O. 1970, c. 270; and R.S.O. 1980, c. 263, Class Proceedings Act, 1992, S.O. 1992, c. 6, s 28(1), Criminal Code, s. 672.11, Courts of Justice Act, R.S.O. 1990, c. C.43, s 128(3), s 130(1), Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s 11, Fenton v North York Hydro Electric Commission (1996), 29 OR (3d) 481, Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Rooney v ArcelorMittal S.A, 2016 ONCA 630, Andrews v Grand & Toy Alberta Ltd, [1978] 2 SCR 229, Joanisse v Barker (2003), 38 CPC, Barker v Barker, 2018 ONCA 255, Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, Hodgkinson v Simms, [1994] 3 SCR 377, Galambos v Perez, 2009 SCC 48, Dolmage v Ontario, 2010 ONSC 1726, M(K) v M(H), [1992] 3 SCR 6, Guerin v The Queen, [1984] 2 SCR 335, (Attorney General) v Thouin, 2017 SCC 46, Kenny v Lockwood, [1932] OR 141 (CA), McInerney v MacDonald, [1992] 2 SCR 138, R v Sheppard, 2002 SCC 26, Champoux v Jefremova, 2021 ONCA 92, Lac Minerals Ltd v International Corona Resources Ltd, [1989] 2 SCR 574, Royal Bank of Canada v Fogler Rubinoff (1991), 5 OR (3d) 734 (CA), Inglis v Beaty (1878), 2 OAR 453 (CA), Prinzo v Baycrest Centre for Geriatric Care (2002), 60 OR (3d) 474 (CA), Collins v Wilcock, [1984] 3 All ER 374 (UK QB), Hurley v Moore (1993), 107 DLR, Fawley v Moslenko, 2017 MBCA 47, Sirois v Gustafson, 2002 SKQB 452, Reibl v Hughes, [1980] 2 SCR 880, McLean v McLean, 2019 SKCA 15, Warman v Grosvenor (2008), 92 OR (3d) 663 (SC), Dunne v Gauthier, 2000 BCSC 1603, Bruce v Dyer, [1966] 2 OR 705 (HC), Rougemount Capital Inc v Computer Associates International Inc, 2016 ONCA 847, McMaster v The Queen, 2009 FC 937, B(V) v Carins (2003), 65 OR (3d) 343 (SC), Demers v Everson, 2013 ONSC 6134, Weafer (Litigation Guardian of) v Vancouver Coastal Health Authority, 2007 BCSC 481, Nagy v Canada, 2006 ABCA 227, Plester v Wawanesa Mutual Insurance Co (2006), 213 OAC 241 (CA), McIntyre v Grigg (2006), 83 OR (3d) 161, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130, SY v FGC (1996), 26 BCLR (3d) 155 (CA), Cinar Corporation v Robinson, 2013 SCC 73, Honda Canada Inc v Keays, 2008 SCC 39, British Columbia v Zastowny, 2008 SCC 4, Dhingra v Dhingra Estate, 2012 ONCA 261, Randhawa v 420413 BC Ltd, 2009 BCCA 602, Borland v...