Court Of Appeal Summaries (August 1 ' 5, 2022)

• Published date: 10 August 2022
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Litigation, Mediation & Arbitration, Family and Matrimonial, Charges, Mortgages, Indemnities, Corporate and Company Law, Contracts and Commercial Law, Family Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.
Following are this week's summaries of the Court of Appeal for Ontario for the week of August 1, 2022.

In Paul's Transport Inc. v. Immediate Logistics Limited, the appellant freight broker fell into arrears in payment of invoices under a freight brokerage agreement. The appellant had been paid for the freight services by its customers but had not remitted payment to the transportion company. A default judgment was entered against the appellant and its principal (for knowing assistance in breach of statutory trust) partly on the basis of deemed admissions. In dismissing the appeal, a five-member panel that Umlauf v. Umlauf (2001), 53 O.R. (3d) 355 (C.A.) is not good law, and instead endorsed the approach articulated in Segraves, Salimijazi, and Nikore. Only allegations of fact set out in a claim can be deemed admitted. Conclusions of law or allegations of mixed fact and law are not to be deemed admitted.

Other topics included mortgage enforcement, family law and abuse of process in the estate administration and dependent's relief context.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Paul's Transport Inc. v. Immediate Logistics Limited, 2022 ONCA 573

Keywords: Contracts, Statutory Trust Obligation, Unjust Enrichment, Quantum Meruit, Default Judgment, Pre-Judgment Interest, Rules of Civil Procedure, Rules 19, 37 & 76, Interest Act, R.S.C. 1985, c. I15, r 4, s 4, Highway Traffic Act, R.S.O. 1990, c. H.8, s 191.0.1(3), Umlauf v. Umlauf (2001), 53 O.R. (3d) 355 (C.A.), Doldo v. 1497601 Ontario Ltd., 2012 ONSC 4833, Air Canada v. M & L Travel Ltd., [1993] 3 S.C.R. 787, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, Ken Jackson Construction Ltd. v. Macklin, 2017 ONCA 324, Segraves (otherwise Fralick) v. Fralick, [1951] O.R. 871 (C.A.), Salimijazi v. Pakjou (2009), 58 B.L.R. 4th 113 (Ont. S.C.), Nikore v. Jarmain Investment Management Inc. (2009), 97 O.R. (3d) 132 (S.C.), Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, DBDC Spadina Ltd. v. Walton, 2018 ONCA 60, Ernst & Young Inc. v. Chartis Insurance Company of Canada (AIG Commercial Insurance Company of Canada), 2014 ONCA 78, Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, Park v. Park, 2011 ONSC 4234

Kahsai v. Hagos, 2022 ONCA 576

Keywords: Family Law, Spousal Support, Child Support, R. v. Samaniego, 2020 ONCA 439, Hickey v. Hickey, [1999] 2 S.C.R. 518

Hume v. 11534599 Canada Corp., 2022 ONCA 575

Keywords: Contracts, Real Property, Mortgages, Enforcement, Peaceable Possession, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(c), Criminal Code, R.S.C. 1985, c. C-46, s. 41(1), Mortgages Act, R.S.O. 1990, c. M.40, s.2(1) & s. 33(1), Interest Act, R.S.C. 1985, c. I-15, s. 8(1), Hume v. 11534599 Canada Corp., 2021 ONCA 549, 11534599 Canada Corp. v. Hume (1 October 2021), M52791 (C69657) (Ont. C.A.), 11534599 Canada Corp. v. Hume, 2022 ONCA 224, Abu-Saud v. Abu-Saud, 2020 ONCA 824, Royal Trust Corp. of Canada v. 880185 Ontario Ltd. (2005), 198 O.A.C. 235, R. v. Born with a Tooth, 1992 ABCA 244, Royal Trust Corp. of Canada v. Gupta, [1997] O.J. No. 347 (Gen. Div.), Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469, Central Guaranty Trust Co. v. McRae (1993), 13 O.R. (3d) 295 (Gen. Div.), Lee v. Guettler (1975), 10 O.R. (2d) 257 (C.A.), Lusk v. Perrin (1920), 19 O.W.N. 58 (H.C.), Toronto Dominion Bank v. Clarry, 2019 ONSC 5076

Appleyard v. Zealand, 2022 ONCA 570

Keywords: Wills and Estates, Dependent's Support, Family Law, Family Law Act, R.S.O. 1990, c. F.3, Succession Law Reform Act, R.S.O. 1990, c. S.26, Estates Act, R.S.O. 1990, c. E.21, s 44, Courts of Justice Act, R.S.O. 1990, c. C.43, s 134, Rules of Civil Procedure, Rule 75, Appleyard v. Zealand, 2019 ONCA 4, Omiciuolo v. Pasco, 2008 ONCA 241, BMO Trust Company v. Childs, 2020 ONCA 21, Hoang v. Mann Engineering Ltd., 2021 ONCA 742, Marché D'Alimenation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, Mascan Corp. v. French (1988), 64 O.R. (2d) 1 (C.A.), Teitler v. Dale, 2021 ONCA 577, Peoples Trust Company v. Atlas, 2019 ONCA 359, Foy v. Foy (No. 2), [1979] O.J. No. 4386, (1979) 26 O.R. (2d) 220 (C.A.), Wallace v. Crate's Marine Sales Ltd., 2014 ONCA 671, Euring Estate v. Registrar of the Ontario Court (1997), 31 O.R. (3d) 777 (C.A.), Katz v. Katz, 2014 ONCA 607, Yu v. Jordan, 2012 BCCA 367, Cheng v. Liu, 2017 ONCA 104, 828343 Ontario Inc. v. Demshe Forge Inc., 2022 ONCA 412

Short Civil Decisions

Fletcher v. Ontario, 2022 ONCA 569

Keywords: Aboriginal Law, Indian Treaties, Appeals, Scheduling, Evidence, Restoule v. Canada (Attorney General), 2021 ONCA 779

CIVIL DECISIONS

Paul's Transport Inc. v. Immediate Logistics Limited, 2022 ONCA 573

[Gillese, van Rensburg, Paciocco, Harvison Young and Copeland JJ.A.]

COUNSEL:

Macdonald, R. Anmol, and M. Rupoli, for the appellants

Hearn and C. Calvert, for the respondent

Keywords: Contracts, Statutory Trust Obligation, Unjust Enrichment, Quantum Meruit, Default Judgment, Pre-Judgment Interest, Rules of Civil Procedure, Rules 19, 37 & 76, Interest Act, R.S.C. 1985, c. I15, r 4, s 4, Highway Traffic Act, R.S.O. 1990, c. H.8, s 191.0.1(3), Umlauf v. Umlauf (2001), 53 O.R. (3d) 355 (C.A.), Doldo v. 1497601 Ontario Ltd., 2012 ONSC 4833, Air Canada v. M & L Travel Ltd., [1993] 3 S.C.R. 787, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, Ken Jackson Construction Ltd. v. Macklin, 2017 ONCA 324, Segraves (otherwise Fralick) v. Fralick, [1951] O.R. 871 (C.A.), Salimijazi v. Pakjou (2009), 58 B.L.R. 4th 113 (Ont. S.C.), Nikore v. Jarmain Investment Management Inc. (2009), 97 O.R. (3d) 132 (S.C.), Energy Fundamentals Group Inc. v. Veresen Inc., 2015 ONCA 514, DBDC Spadina Ltd. v. Walton, 2018 ONCA 60, Ernst & Young Inc. v. Chartis Insurance Company of Canada (AIG Commercial Insurance Company of Canada), 2014 ONCA 78, Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, Park v. Park, 2011 ONSC 4234

FACTS:

In 2015, the parties agreed to a freight brokerage agreement, where the appellant company was the freight broker and would schedule delivery of goods to the clients and the respondent would transport the goods. In August of 2015, the appellant fell into arrears in payment of invoices issued by the respondent. When the respondent re-issued invoices directly to the shippers, it learned that the shippers had already paid the appellant and would not pay again. In late 2015, the appellant ceased to operate, closed its bank accounts, and vacated its business premises.

In 2017, the respondent issued a statement of claim against the appellant corporation and its principals, Mr. C and Mrs. C seeking $100,000 in damages for unpaid invoices, breach of contract, breach of statutory trust obligation, unjust enrichment, and/or quantum meruit. The appellants were noted in default. The respondent sought to enforce the default judgments through writs of seizure and sale. The appellants obtained counsel to set aside the default judgments. Three motions followed. The Third Motion was the subject of this appeal.

The appellants sought to set aside the pre-judgment interest award of $120,000. They also sought to set aside the judgment as against the individual appellant, Mr. C, or alternatively, to vary the principal amount awarded against him to be $59,455.75, rather than $100,000.

A five-member panel heard this appeal, as it required the Court to decide whether Umlauf v. Umlauf (2001), 53 O.R. (3d) 355 (C.A.) is good law.

ISSUES:

(1) Did the motion judge err by dismissing the Third Motion on the basis that the appellants had not filed the necessary evidence?

(2) Did the motion judge err by failing to apply the correct legal test when determining whether to set aside the October 2020 Default Judgment?

(3) Did the motion judge err by upholding the order making Mr. C personally liable for knowingly assisting in a breach of statutory trust?

(4) Did the motion just err by not properly considering the prejudice to the appellants and the integrity of the administration of justice?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The appellants submitted that the motion judge erred by dismissing the Third Motion on the ground that they failed to provide the court with the material filed on the Second Motion. The Court did not accept any of the arguments advanced in support of this submission. The appellants had the burden to file the material...