Court Of Appeal Summaries (August 22, 2022 ' August 26, 2022)

• Published date: 29 August 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Real Estate and Construction, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Real Estate, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of August 22, 2022.

In Mundo Media Ltd. (Re), the Court refused leave to appeal in a bankruptcy case where a debtor of the bankrupt sought to stay the bankruptcy proceeding in favour of international arbitration. The single proceeding model permits a bankruptcy court to override arbitration agreements.

In 2264052 Ontario Inc. v. Brockville Centre Development Corp., the Court took issue with the trial judge's analysis of the parties' claims at trial and the manner in which the trial unfolded. Specifically, the Court held that the trial judge failed to establish the proper foundation for a fiduciary duty that would establish liability on the appellants. Consequently, the Court determined that, given the lack of analysis of the various causes of action that were advanced, the failure to relate the evidence to them, and certain factual findings that were made by the trial judge which were not borne out the evidence, the reasons of the trial judge did not allow for appellate review. The trial judge's reasons simply failed to properly explain to the parties the basis upon which the trial judge fixed liability on the appellants. A new trial was ordered.

Other topics this week include the court's discretion in hearing a motion for partial summary judgment, condominium oppression and liens to enforce a special assessment, and setting aside default judgments.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 602

Keywords: Fraud, Punitive Damages, Civil Procedure, Partial Summary Judgment, Costs, Full Indemnity, Limitation Periods, Fraudulent Concealment, Malik v. Attia, 2020 ONCA 787, Envoy Relocation Services Inc. v. Canada (Attorney General), 2013 ONSC 2622, Vandenberg v. Wilken, 2019 ONCA 262, Mason v. Perras Mongenais, 2018 ONCA 978, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Hryniak v. Mauldin, 2014 SCC 7

Mundo Media Ltd. (Re), 2022 ONCA 607

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Arbitration Agreements, Enforceability, Single Proceeding Model, Appeals, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 193 (a) - (e) and 243, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, UNCITRAL Model Law on International Commercial Arbitration, Sam Lévy & Associés Inc. v. Azco Mining Inc., 2001 SCC 92, [2001] 3 S.C.R. 978, Re: Essar Steel Algoma Inc. Et al, 2016 ONSC 595, Montréal, Maine & Atlantic Canada Co., 2013 QCCS 5194, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 256 (Ont. C.A.), Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, leave to appeal refused, [2017] S.C.C.A. No. 238, Royal Crest Lifecare Group Inc. (Re) (2004), 181 O.A.C. 115 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 104, Grant Forest Products Inc. v. The Toronto-Dominion Bank, 2015 ONCA 570, Cosa Nova Fashions Ltd. v. The Midas Investment Corporation, 2021 ONCA 581, Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375, McEwen (Re), 2020 ONCA 511, Automatic Systems Inc. v. Bracknell Corp. (1994), 18 O.R. (3d) 257 (C.A.), Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, Rogers Wireless Inc. v. Muroff, 2007 SCC 35, [2007] 2 S.C.R. 921, Canada (Attorney General) v. Reliance Insurance Co. (2007), 87 O.R. (3d) 42 (S.C.), Luscar Ltd. v. Smoky River Coal Ltd., 1999 ABCA 179, 175 D.L.R (4th) 703, leave to appeal application discontinued, [1999] S.C.C.A. No. 381, Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, P.I.A. Investments Inc. v. Deerhurst Ltd. Partnership (2000), 20 C.B.R. (4th) 116 (Ont. C.A.), Thorne v. College of the North Atlantic, 2022 NLCA 31, 3113736 Canada Ltd. v. Cozy Corner Bedding Inc., 2020 ONCA 235, Roderick J. Wood, Bankruptcy and Insolvency Law (Toronto: Irwin Law, 2009)

MacDonald v. Wentworth Condominium Corporation No. 96, 2022 ONCA 606

Keywords: Real Property, Condominium, Declarations, Reserve Funds, Special Assessments, Oppression, Enforcement, Lien, Condominium Act, 1998, S.O. 1998, c. 19, s. 97(1) and s.97(4), Humphrey v. Mene Inc., 2022 ONCA 531, Doyle v. Zochem Inc., 2017 ONCA 130

FS Partnership/UPI Energy FS v. Mr. Refuel Inc., 2022 ONCA 612

Keywords: Breach of Contract, Civil Procedure, Default Judgments, Setting Aside, Orders, Settling Terms, Varying, Fresh Evidence, Rules of Civil Procedure, r. 3.02(1) and r. 59.04(10), Duffin v. NBY Enterprises Inc., 2010 ONCA 765, Beard Winter LLP v. Shekhdar, 2015 ONSC 4517, R. v. Palmer and Palmer, [1980] 1 S.C.R. 759, Brown v. The Municipal Property Assessment Corp., 2014 ONSC 7137 (Div. Ct.)

2264052 Ontario Inc. (Louch & Louch) v. Brockville Centre Development Corp., 2022 ONCA 610

Keywords: Contracts, Real Property, Mortgages, Duty of Honest Performance, Land Development, Torts, Negligent Misrepresentation, Civil Conspiracy, Fiduciary Duty, Civil Procedure, Reasons for Decision, Reasonable Apprehension of Bias, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 25.06(8), Hodgkinson v. Simms, [1994] 3 S.C.R. 377, Knoch Estate v. Jon Picken Ltd., [1991] O.J. No. 1394 (C.A.), Wawrzkiewicz v. Integrated Distribution Systems Limited Partnership, 2017 ONSC 1664, Bhasin v. Hrynew, 2014 SCC 71

Short Civil Decisions

Divitaris v. Gerstel, 2022 ONCA 605

Keywords: Civil Procedure, Litigation Guardians, Appeals, Jurisdiction, Final or Interlocutory, Leave to Appeal, Rules of Civil Procedure, r. 7.06(2), Willmot v. Benton, 2011 ONCA 104, Must v. Shkuryna, 2015 ONCA 665, Huang v. Pan, 2017 ONCA 268

Mondal v. Kirkconnell, 2022 ONCA 609

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Appeals, Hearing Together, Courts of Justice Act, R.S.O. 1990 c. C.43, s. 137.1, Ontario Civil Appeals Practice Direction, s. 11.9, Williams v. Canada (AG), 2007 CarswellOnt 9967 (C.A.), Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 2845, Moshinsky-Helm v. Helm, 2022 ABCA 32

CIVIL DECISIONS

NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 602

[Huscroft, Harvison Young and Sossin JJ.A.]

COUNSEL:

N. Emblem and C. Maldi, for the appellants
R. Gilliland and C. Groper, for the respondents

Keywords: Fraud, Punitive Damages, Civil Procedure, Partial Summary Judgment, Costs, Full Indemnity, Limitation Periods, Fraudulent Concealment, Malik v. Attia, 2020 ONCA 787, Envoy Relocation Services Inc. v. Canada (Attorney General), 2013 ONSC 2622, Vandenberg v. Wilken, 2019 ONCA 262, Mason v. Perras Mongenais, 2018 ONCA 978, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Hryniak v. Mauldin, 2014 SCC 7

FACTS:

The respondent, NDrive is a software company based in Portugal. The appellant, Z owns and controls Aqua Latitude International Limited ("Aqua"), a Hong Kong corporation, and is the sole director of the appellant Aguazion Inc., a Canadian corporation. On March 17, 2010, the respondent, NDrive, entered into a consultancy agreement with Aqua's predecessor. Through Aqua, the appellant helped NDrive establish a business relationship with LG Electronics Inc. ("LG") resulting in NDrive and LG entering a licensing agreement in which LG had the right to license the NDrive software on its mobile phones. Later, NDrive discovered that LG had underreported the number of phones that had NDrive software. NDrive commenced an arbitration, which was overseen by the appellant, Z, on behalf of NDrive. Hakemi & Ridgedale LLP ("H&R") was to assist in the arbitration and receive instructions from Z. NDrive won an arbitral award of US$1,068,085.43, which H&R received. On Z's direction, H&R wired the balance of the award totaling US$851,315.94 to an Aguazion account. NDrive appealed the arbitral decision and Z handled the conduct of the appeal. The appeal was not successful.

NDrive's position was that Z had defrauded it through its conduct during arbitration. On May 4, 2020, the respondent filed a statement of claim, claiming damages of US$958,449.75. The Zhou parties counterclaimed for damages of $5 million. On May 6, 2020, NDrive successfully moved for a Mareva injunction. On March 12, 2021, NDrive brought a motion for partial summary judgment and to dismiss the Z parties' counterclaim.

NDrive was granted partial summary judgment for US$881,170.48 and punitive damages of $200,000. The Z parties' counterclaim was also dismissed. The motion judge found that the appellant had misled...