Court Of Appeal Summaries (October 3 - 7, 2022)

• Published date: 11 October 2022
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Charges, Mortgages, Indemnities, Financial Services, Family Law, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases, 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 October 3, 2022.

In Johnson v. Johnson, 2022 ONCA 682, a daughter of a testator was left out of the will, and as a result, sought to challenge the will's validity. The Court confirmed that there is a minimum evidentiary burden to require proof of a will in solemn form as set out in the framework in Neuberger v. York, 2016 ONCA 191. As set out in Neuberger "proving a will in solemn form requires the propounder of a will to prove, in open court upon notice to all parties having a financial interest in the estate, that the will was duly executed, the testator had testamentary capacity and that the testator had knowledge and approval of the contents of the will... The court will also address allegations of undue influence and suspicious circumstances" in the course of such a hearing. A court on a will challenge maintains discretion in the weighing the parties' evidence. Ultimately, the Court saw no error in the application judge's analysis or findings that the threshold for requiring the will to be proved in solemn form had not been met in this case.

1027410 Ontario Inc. v. 2384589 Ontario Limited involved an appeal over a compensatory award of the market value for converted chattels under a chattel mortgage, and the awarding of punitive damages. The appellant landlord's argument that the respondent had abandoned ownership of the chattels subject to the mortgage was denied, as the argument had not been raised at trial, and the facts did not support the argument. The appellant's argument regarding punitive damages was dismissed, as the trial judge's award of punitive damages was entitled to deference.

Other topics included whether there was a cause of action against a property appraiser for the tort of negligent misrepresentation and vexatious litigants.

Wishing everyone a Happy Thanksgiving long weekend! Go Jays Go!

Table of Contents

Civil Decisions

Mahendran v. 9660143 Canada Inc., 2022 ONCA 676

Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Special Relationship, Civil Procedure, Third Party Claims, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, McCreight v. Canada (Attorney General), 2013 ONCA 483, Queen v Cognos Inc., [1993] 1 S.C.R. 87, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Barkley v. Tier 1 Capital Management Inc., 2018 ONSC 1956, aff'd 2019 ONCA 54

Johnson v. Johnson, 2022 ONCA 682

Keywords: Wills and Estates, Validity, Capacity, Suspicious Circumstances, Undue Influence, Civil Procedure, Proving Will, Evidence, Rebuttable Presumptions, Costs, Whether Payable out of Estate, Rules of Civil Procedure, Rules 57, 75, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131, Neuberger v. York, 2016 ONCA 191, Seepa v. Seepa, 2017 ONSC 5368, Lewis v. Lewis, 2019 ONCA 690, Vout v. Hay, [1995] 2 S.C.R. 876, Hryniak v. Mauldin, 2014 SCC 7, Salter v. Salter Estate (2009), 50 E.T.R. (3d) 227, McDougald Estate v. Gooderham (2005), 199 O.A.C. 203 (C.A.)

Bell v. Fishka, 2022 ONCA 683

Keywords: Family Law, Civil Procedure, Quashing Appeals, Failure to Comply with Costs Orders, Frivolous, Vexatious, Abuse of Process, Rules of Civil Procedure, r. 2.1, Family Law Rules, O. Reg. 114/ 99, r. 1(8), Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806

LeBlanc v. Alghamdi, 2022 ONCA 687

Keywords: Torts, Assault and Battery, Civil Procedure, Stay of Proceedings, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43 s. 140, Rules of Civil Procedure, r. 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Lina Ahmed v. Ministry of the Attorney General, 2020 ONSC 7892, aff'd 2021 ONCA

1027410 Ontario Inc. v. 2384589 Ontario Limited, 2022 ONCA 688

Keywords: Torts, Conversion, Personal Property, Chattels, Chattel Mortgages, Damages, Punitive Damages, Civil Procedure, Appeals, New Issue on Appeal, Personal Property Security Act, R.S.O. 1990, c. P.10, s. 65(2), Kaiman v. Graham, 2009 ONCA 77, Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551, Whiten v. Pilot Insurance Co., 2002 SCC 18, Armstrong v. Moore, 2020 ONCA 49, Grand Financial Management Inc. v. Solemio Transportation Inc., 2016 ONCA 175, Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc., 2019 ONCA 439

Short Civil Decisions

Hume v. 11534599 Canada Corp., 2022 ONCA 680

Keywords: Civil Procedure, Costs, Scale of Costs, Contractual Costs, Rules of Civil Procedure, r. 57.01(1), Bossé v. Mastercraft Group Inc., 123 D.L.R. (4th) 161, Chong & Dadd v. Kaur, 2013 ONSC 6252

CIVIL DECISIONS

Mahendran v. 9660143 Canada Inc., 2022 ONCA 676

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

S. Singh, acting in person and for the appellant 9660143 Canada Inc.

H. Book and W. McLennan, for the respondent

Keywords: Torts, Negligent Misrepresentation, Duty of Care, Proximity, Special Relationship, Civil Procedure, Third Party Claims, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, McCreight v. Canada (Attorney General), 2013 ONCA 483, Queen v Cognos Inc., [1993] 1 S.C.R. 87, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Barkley v. Tier 1 Capital Management Inc., 2018 ONSC 1956, aff'd 2019 ONCA 54

facts:

In the main action, the plaintiff, Mr. M, sued a number of defendants, including the appellants SS and 9660143 Canada Inc. ("966"), under the Construction Act, in relation to services and materials provided for a property owned by 966 (the "Property"). The appellants defended the main action, and brought a counterclaim against Mr. M, alleging that he was responsible for a real estate deal that failed to close between the appellants and Mr. M's sister-in-law, Ms. S.

The appellants also brought a third-party claim against The Nationwide Groups Ltd. ("Nationwide"). Nationwide had obtained an appraisal for the Property for Ms. S' lender, the Royal Bank of Canada ("RBC"). In the third-party claim, the appellants alleged that Nationwide's appraisal undervalued the Property, which led to Ms. S's refusal to close the transaction.

Nationwide brought a motion to strike the third-party claim on the basis that it did not disclose a cause of action. The motion judge granted the motion and dismissed the third-party claim on the grounds that the respondent did not owe the appellants a duty of care and the appellants did not plead that they relied on the respondent's appraisal.

issues:

Did the motion judge err in finding that the respondent did not owe the appellant a duty of care?

holding:

Appeal dismissed.

reasoning:

No.

The Court found no error in the motion judge's decision. The issue of whether a duty of care was owed is a question of law that can, in appropriate circumstances, be resolved on a pleadings motion. The Court agreed that, on the facts pleaded, it was plain and obvious that Nationwide did not owe the appellants a duty of care.

The Court noted...