Court Of Appeal Summaries (October 31, 2022 ' November 4, 2022)

• Published date: 08 November 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Real Estate and Construction, Criminal Law, Contract of Employment, Unfair/ Wrongful Dismissal, Employment Litigation/ Tribunals, Trials & Appeals & Compensation, Construction & Planning, Real Estate, White Collar Crime, Anti-Corruption & Fraud, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good evening.

Please find our summaries for the civil decisions of the Court of Appeal for Ontario for the week of October 31, 2022.

In a continuation of an ever-lengthening string of recent cases on the failure to make immediate disclosure of partial settlements, the Court in Crestwood Preparatory College Inc. v. Smith dismissed an appeal from the decision of the motion judge that had stayed an action for failure to immediately disclose the settlement to the non-settling parties.

In Lake v. La Presse, a claim by a wrongfully dismissed employee, the Court overturned a motion judge's decision to reduce an employee's wrongful dismissal damages by two-months because of a failure to mitigate. The Court determined that the motion judge erred in her application of the two-part test for what constitutes reasonable mitigation. The Court confirmed that a wrongfully dismissed employee does not have to accept lesser paying jobs and the Court must be satisfied, if reasonable steps had been taken, that the employee would have found a comparable position. It is not enough to ground a finding of failure to reasonably mitigate that an employee would have increased their chances of finding new employment if they had taken more steps. Further, the Court clarified that the onus is on the employer, as the at-fault party, to prove that the employee failed to reasonably mitigate.

In Stelmach Project Management Ltd. v. Kingston (City), the Court confirmed that municipalities have the discretion to choose between the Municipal Act, 2001 and the Development Charges Act, 1997 to pass by-laws aimed at levying charges on land developers for the costs of additional infrastructure to support new properties. An overview of the legislative history made it clear that it was the intention of the legislature to maintain a dual regime to recover capital costs for development infrastructure.

In 10443204 Canada Inc. v. 2701835 Ontario Inc., the Court allowed an appeal from summary judgment. The motion judge erred in law because he treated an "entire agreement" clause in a purchase agreement as precluding a fraudulent misrepresentation defence. This was contrary to settled law. Further, the Court held that it was an error to determine the preclusive effect of the clause based on the fact that the appellants had opportunities to perform due diligence. Further, in reading the motion judge's reasons as a whole, the Court did not agree that he determined, independently of his approach to the entire agreement clause, that there was no genuine issue requiring a trial as to whether a fraudulent misrepresentation was made.

In Don Mills Residents Inc. v. Toronto (City), the Court found that the City of Toronto was entitled to change its mind about whether to require developers to build two community centres in Don Mills (one at Don Mills and Eglinton and one at Don Mills and Lawrence) as initially envisioned, or whether to build one larger community centre at Don Mills and Eglinton. The decision turned on whether minutes of settlement entered into between the City and the Developer at an OMB proceeding to which the Don Mills residents had been given intervener status was a binding and enforceable agreement requiring the City to build both community centres. The Court upheld the application judge's decision that it was not binding and enforceable on the City.

Finally, the second edition of Civil Procedure and practice Ontario, 2022 ONCA 720 (CPPO) is now live on CanLII's website. For those who may not know, CPPO offers to the public, the profession and the judiciary, a free online set of annotated Rules of Civil Procedure, as well as the Courts of Justice Act and the Limitations Act, 2002, complete with commentary and case law. The project was coordinated by Professor Noel Semple of Windsor Law School, and the chapters were written by a host of prominent and knowledgeable practitioners and judges. John Polyzogopoulos had the privilege of co-authoring the chapters on references (Rules 54 and 55).

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

Stelmach Project Management Ltd. v. Kingston (City), 2022 ONCA 741

Keywords: Municipal Law, Statutory Interpretation, Land Use Planning, By-laws, Development Charges, Municipal Act, 2001, S.O. 2001, c. 25, ss. 10(2), 15(1), 391, 394(1)(e), Development Charges Act, 1997, S.O. 1997, c. 27, ss. 2, 5, 10(1), 10(2)(7), 12(1), Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 71(c), Fees and Charges, O. Reg. 584/06, s. 2(1), Mississauga (City) v. Erin Mills Corp. (2004), 71 O.R. (3d) 397 (C.A.), Ontario Cancer Treatment and Research Foundation v. Ottawa (City) (1998), 38 O.R. (3d) 224 (C.A.), Croplife Canada v. Toronto (City) (2005), 75 O.R. (3d) 357 (C.A.), R. v. Greenbaum, [1993] 1 S.C.R. 674, Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641 (C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Canada v. Cheema, 2018 FCA 45, Whiteley v. Guelph (City) (1999), 14 M.P.L.R. (3d) 146 (Ont. OMB), Nylene Canada Inc. v. Corporation of the Town of Arnprior, 2017 ONSC 795, John Mascarin and Paul De Francesca, Annotated Land Development Agreements, loose-leaf (2022 Release 3), Robert Macaulay and Robert Doumani, Ontario Land Development: Legislation and Practice, loose-leaf (1999 Release 3), John Mascarin and Christopher J. Williams, Ontario Municipal Act & Commentary, 2023 ed. (Markham: LexisNexis Canada Inc., 2022), Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada Inc., 2022)

Lake v. LaPresse, 2022 ONCA 742

Keywords: Employment Law, Wrongful Dismissal, Termination without Cause, Damages, Mitigation, Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Red Deer College v. Michaels, [1976] 2 S.C.R. 324, Gryba v. Moneta Porcupine Mines Ltd. (2000), 5 C.C.E.L. (3d) 43 (Ont. C.A.), Link v. Venture Steel Inc., 2010 ONCA 144, Humphrey v. Mene Inc., 2022 ONCA 531, McNevan v. AmeriCredit Corp., 2008 ONCA 846, Neilipovitz v. ICI Paints (Canada) Inc. (2002), 27 C.C.E.L. (3d) 256 (Ont. S.C.), Carter v. 1657593 Ontario Inc., 2015 ONCA 823, Forshaw v. Aluminex Extrusions Ltd. (1989), 39 B.C.L.R. (2d) 140 (C.A.), Rowe v. General Electric Canada Inc. (1994), 8 C.C.E.L. (2d) 95 (Ont. Gen. Div.), Parks v. Vancouver International Airport Authority, 2005 BCSC 1883

Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

Keywords: Civil Procedure, Partial Settlement Agreements, Disclosure Obligations, Abuse of Process, Remedies, Stay of Proceedings, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Tribecca Finance Corp. v. Harrison, 2019 ONSC 1926, Magnotta Winery Corporation v. Ontario (Alcohol and Gaming Commission), 2021 ONSC 178, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Waxman v. Waxman, 2021 ONSC 2180, Mann Engineering Ltd. v. Desai, 2021 ONSC 2245, Caroti v. Vuletic, 2021 ONSC 2778, Skymark Finance Corporation v. Her Majesty the Queen in Right of Ontario et al. (27 July 2021), Oshawa, 17/131909 (Ont. S.C.), Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Hamilton-Wentworth District School Board v. Zizek, 2022 ONCA 638, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Laudon v. Roberts, 2009 ONCA 383, Aviaco International Leasing Inc. v. Boeing Canada Inc. (2000), 9 B.L.R. (3d) 99 (Ont. S.C.)

10443204 Canada Inc. v. 2701835 Ontario Inc., 2022 ONCA 745

Keywords: Contracts, Interpretation, Entire Agreement Clauses, Defences, Rescission, Fraudulent Misrepresentation, Civil Procedure, Summary Judgment, Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 1018429 Ontario Inc. v. Fea Investments Ltd. (1999), 179 D.L.R. (4th) 268 (Ont. C.A.), Hasham v. Kingston (1991), 4 O.R. (3d) 514 (Div. Ct.), Soboczynski v. Beauchamp, 2015 ONCA 282, Free Ukrainian Society (Toronto) Credit Union Ltd. v. Hnatkiw et al., [1964] 2 O.R. 169 (C.A.), Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19

Don Mills Residents Inc. v. Toronto (City), 2022 ONCA 752

Keywords: Municipal Law, Site Plan Control, Contracts, Interpretation, Intention to Create Binding Legal Relations, Essential Terms, Agreements to Agree, Minutes of Settlement, Enforceability, Privity, Remedies, Specific Performance, Damages, Planning Act, R.S.O. 1990, c. P.13, s. 7 and 37, Hi-Rise Structures Inc. v. Scarborough (City) (1992), 10 O.R. (3d) 299 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Short Civil Decisions

Art for Everyday Inc. v. Canarctic J.F.K. Inc., 2022 ONCA 747

Keywords: Contracts, Real Property, Commercial Leases, Default, Termination, Notice

Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2022 ONCA 755

Keywords: Aboriginal Law, Real Property, Aboriginal Title to Submerged Land, Public Right of Navigation, Civil Procedure, Intervenors, Fresh Evidence, Rules of Civil Procedure, r. 13.03(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Keewatin v. Ontario (Natural Resources), 2012 ONCA 472, McIntyre Estate v. Ontario (Attorney General) (2001), 26 C.P.C. (5th) 312 (Ont. C.A.)

Ryan v. Herbert, 2022 ONCA 750

Keywords: Family Law, Civil Procedure, Approval of Settlements, Rules of Civil Procedure, rr. 7.08, 21.01(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 87(2), Azzeh v. Legendre, 2017 ONCA 385

CIVIL DECISIONS

Stelmach Project Management Ltd. v. Kingston (City), 2022 ONCA 741

...