Court Of Appeal Summaries (September 12 ' 16, 2022)

• Published date: 19 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Real Estate, Civil Law, Wills/ Intestacy/ Estate Planning
• 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 September 12, 2022.

In Optiva Inc. v. Tbaytel, the Court dismissed the appeal from an arbitrator's decision granting summary judgment. The arbitrator had the authority to proceed by summary judgment motion, as the arbitration agreement gave the arbitrator broad powers to determine the procedure to be employed.

In 2174372 Ontario Ltd. v. Dharamshi, a builder refused to release purchasers from their obligation to purchase after they were having difficulty obtaining purchase financing. However, by the time the closing date had come around, the builder had not completed construction, while the purchasers had come up with financing. The builder asked for an extension and was refused, and was unable to close. The purchasers were successful in obtaining a return of their deposit in the court below, and the builder's appeal was dismissed by the Court.

Other topics this week included the interpretation of a Will, a property dispute involving ouster and occupation rent and leave to appeal under s.193(e) of the Bankruptcy and Insolvency Act.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Tsitsos v. Poka, 2022 ONCA 647

Keywords: Real Property, Joint Tenancies, Ouster, Occupation Rent, Civil Procedure, Affidavit Evidence, Translations, Fresh Evidence, Kerr v. Baranow framework: 2011 SCC 10, Palmer v. The Queen, [1980] 1 SCR 759, R. v. Araya, 2015 SCC 11, Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.)

Optiva Inc. v. Tbaytel, 2022 ONCA 646

Keywords: Contracts, Arbitration, Motion for Summary Judgment, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 2, ss. 3, ss. 17, ss. 26, ss. 45 and ss. 46, Rules of Civil Procedure, R.R.O. 1990, s. 1.03, Reg. 194., Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 1(1) and ss. 15(1), Optiva Inc. v. Tbaytel, 2021 ONSC 2929, Inforica Inc. v. CGI Information Systems and Management Consultants Inc., 2009 ONCA 642, 97 O.R. (3d) 161, Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, Desputeaux v. Éditions Chouette (1987) Inc., 2003 SCC 17, Travis Coal Restructured Holdings LLC v. Essar Global Fund Ltd., [2014] EWHC 2510 (Comm), Hryniak v. Mauldin, 2014 SCC 7, Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 254, Ticketnet Corp. v. Air Canada, [1993] O.J. No. 289 (Gen. Div.), Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181, Ottawa (City) v. Coliseum Inc., 2016 ONCA 363.

VanSickle Estate v. VanSickle, 2022 ONCA 643

Keywords: Wills and Estates, Wills, Interpretation, Succession Law Reform Act, R.S.O. 1990, c. S.26, Trezzi v. Trezzi, 2019 ONCA 978

Conforti Holdings Limited (Re), 2022 ONCA 651

Keywords: Bankruptcy and Insolvency, Claims Provable in Bankruptcy, Valuation of Claims, Proposal Trustees, Civil Procedure, Jurisdiction, Multiplicity of Proceedings, Leave to Appeal, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s.135, s.193(e), Ontario Business Corporations Act, R.S.O. 1990, C. B.16, Business Development Bank of Canada v. Pine Tree Resorts Inc. et al, 2013 ONCA 282, Re Nortel Networks Corporation et al, 2015 ONSC 1354, Kitchener Frame Limited (Re), 2012 ONSC 234

2174372 Ontario Ltd. v. Dharamshi, 2022 ONCA 648

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Repudiation

Short Civil Decisions

Barker v. Barker, 2022 ONCA 652

Keywords: Appeal, Damages, Quantum of Costs, Reasonableness, Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33, Waxman v. Leibow, 2004 CanLII 31901 (Ont. C.A.)

CIVIL DECISIONS

Tsitsos v Poka, 2022 ONCA 647

[Tulloch, Nordheimer and Harvison Young JJ.A.]

Counsel:

E.D. Fredman, for the appellant
A.V. Kralingen and K. Chau, for the respondents

Keywords: Real Property, Joint Tenancies, Ouster, Occupation Rent, Civil Procedure, Affidavit Evidence, Translations, Fresh Evidence, Kerr v. Baranow framework: 2011 SCC 10, Palmer v. The Queen, [1980] 1 SCR 759, R. v. Araya, 2015 SCC 11, Griffiths v. Zambosco (2001), 54 O.R. (3d) 397 (C.A.)

facts:

The appellant, K. P., is the sister of the respondent G. T. and sister-in-law to G.T.'s husband, B.T. In 1991, B.T. and his business partner purchased a pizzeria in Manitoba for $425,000. The appellant argued unsuccessfully at trial that she was a partner in this joint family venture and claimed to have contributed 24 million Greek drachmas (approx. C$150,000) to the respondents to buy their share of the pizzeria.

The appellant and respondents purchased a property in Toronto and both the appellant and the respondents were all on title as joint tenants. From 2005 onwards, the appellant and the respondents' son were based full-time in Toronto. The appellant cared for the respondents' son, who was musically talented and pursued his studies in Toronto. In 2013, shortly after the appellant's son was charged with a serious criminal offence, G.T. returned to Toronto to act as a surety for the respondent's son. She returned on the condition that the appellant vacate the home so that she could live there. The appellant's son was denied bail, so the respondent, G.T. returned to Manitoba and the appellant moved back into the property. When the appellant returned to the property, she changed the locks and alarm code and refused to give the respondents a new set of keys or the alarm code, thereby preventing them, or their son, from having access to the home. During this period, the respondents paid the property's carrying costs and also had to pay rent for their son's alternative accommodations in Toronto.

issues:

(1) Is there merit to allow the appellant to admit fresh evidence?

(2) Did the trial judge err in dismissing all of the evidence provided by one of the appellant's witnesses and in dismissing the witness after striking their affidavit for lack of translation?

(3) Did the trial judge err in her application of the law of ouster and occupation rent to the facts in this case?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that there was no merit in the application to admit fresh evidence as it failed to satisfy the criteria for admission as established in Palmer v. The Queen. When the fresh evidence is taken with the other evidence adduced at trial, even if believed, it could not have reasonably affected the result. The Court further stated that the proposed fresh evidence could have been produced at trial with due diligence and it was neither credible nor reliable.

(2) No.

The Court held that the trial judge committed no error in striking both the affidavit and dismissing the witness in this case. The Court found that it was clear that the trial judge's reasons demonstrated that she considered the evidence as a whole and determined that the probative value of the respondents' reply evidence outweighed the potential prejudice...