Court Of Appeal Summaries (November 28, 2022 ' December 2, 2022)

• Published date: 06 December 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Arbitration & Dispute Resolution, Class Actions, Trials & Appeals & Compensation, Human Rights, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of November 28 to December 2, 2022.

This was a fairly light week. Topics covered included the applicable appeal routes to class proceedings in light of the 2020 amendments to the Class Proceedings Act, 1992, judicial review of a Human Rights Tribunal decision regarding whether Minutes of Settlement intended to settle both or only of the two outstanding human rights proceedings, stay pending appeal in a family law relocation case, vexatious litigants in a family law custody case and security for costs of an appeal where the appellant had few assets and a history of non-payment of costs orders and mortgage payments.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Briggs v. Durham (Police Services Board), 2022 ONCA 823

Keywords: Human Rights, Administrative Law, Judicial Review, Standard of Review, , Contracts, Interpretation, Settlements, Human Rights Code, R.S.O. 1990, c. H.19, s. 45.8, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Shaw v. Phipps, 2012 ONCA 155, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Biancaniello v. DMCT LLP, 2017 ONCA 386, 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145

Flores v. Glegg, 2022 ONCA 825

Keywords: Family Law, Emancipation of a Minor, Child Support, Civil Procedure, Vexatious Litigants, Abuse of Process, Res Judicata, Issue Estoppel, Collateral Attack, Costs, Courts of Justice Act, R.S.O. 1990 c. C.43, ss. 106, 140, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, R.G. v. K.G., 2017 ONCA 108, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Winter v Sherman Estate, 2018 ONCA 703, Peoples Trust Company v. Atas, 2018 ONSC 58

David v. Loblaw Companies Limited, 2022 ONCA 833

Keywords: Class Action Proceedings, Certification Order, Appeal, Jurisdiction of Appeal, Transitionary Rules, Statutory Interpretation, Class Proceedings Act, 1992, S.O. 1992, c. 6, s.5, s.30(1)(a)(b), s.30(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s.6(1)(b), Legislation Act, 2006, S.O. 2006, c. 21, s. 52, Cavanaugh v. Grenville Christian College, 2013 ONCA 139

Ncube v. Hassen, 2022 ONCA 840

Keywords: Family Law, Co-Parenting, Relocation, Best Interest of Child, Civil Procedure, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), s. 19(1)(b) and s. 39.2, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Fontaine v. Canada (Attorney General), 2021 ONCA 313, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Johnson v. Ontario, 2021 ONCA 650, Hopkins v. Kay, 2014 ONCA 514, D.C. v. T.B., 2021 ONCA 562

Gauthier Estate v. White, 2022 ONCA 846

Keywords: Wills and Estates, Estate Trustees, Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, r. 56 and 61.06, Yaiguaje v. Chevron Corporation , 2017 ONCA 827, Henderson v. Wright, 2016 ONCA 89

Short Civil Decisions

Godoy v. Godoy, 2022 ONCA 828

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, r. 2.1.01, Visic v. Elia Associates Professional Corporation, 2020 ONCA 690

Liu v. Qiu, 2022 ONCA 835

Keywords: Civil Procedure, Costs

Singh v. Seth, 2022 ONCA 837

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Civil Procedure, Orders, Enforcement, Striking Pleadings, Financial Disclosure, Procedural Fairness, Mullin v. Sherlock, 2018 ONCA 1063

ALYU Inc. v. Deca-Yorkville Building Group Inc., 2022 ONCA 834

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Corner Brook (City) v. Bailey, 2021 SCC 29

Visic v. Elia Associates Professional Corporation, 2022 ONCA 841

Keywords: Torts, Defamation, , Regulated Professions, Lawyers, Civil Procedure, Summary Judgment, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a)

Children's Aid Society Region of Peel v. L.M., 2022 ONCA 838

Keywords: Family Law, Child Protection, Civil Procedure, Costs

CIVIL DECISIONS

Briggs v. Durham (Police Services Board), 2022 ONCA 823

[Simmons, Benotto and Favreau JJ.A.]

Counsel:

D. Cowling and A. Boissonneau-Lehner, for the appellants

T. Young and M. Noble, for the respondent J.B.

J. Tam and K. Snukal, for the respondent Human Rights Tribunal of Ontario

Keywords: Human Rights, Administrative Law, Judicial Review, Standard of Review, , Contracts, Interpretation, Settlements, Human Rights Code, R.S.O. 1990, c. H.19, s. 45.8, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Shaw v. Phipps, 2012 ONCA 155, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Biancaniello v. DMCT LLP, 2017 ONCA 386, 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145

facts:

The respondent, J.B., brought two separate applications to the Human Rights Tribunal of Ontario (the "Tribunal") against the Durham Regional Police Services Board (the "Board") and individual police officers. The first application arose from an incident on May 4, 2011, when two officers followed J.B., who is a black man, out of a restaurant parking lot. J.B. was then pulled over, questioned, handcuffed and detained. He alleged that he was discriminated against on the basis of race, colour, and ethnic origin. The second application arose from an incident on October 8, 2012, when J.B. was arrested and detained in Oshawa. An independent investigative report found that the police used excessive force against J.B. and denied him medical assistance. This application alleged that the arrest and maltreatment were a reprisal for his first application.

Before the Vice-Chair released her decision in the first application, the parties participated in a mediation in the context of the second application. The parties reached an agreement at mediation, and the Minutes of Settlement (the "Minutes") referred to the style of cause of the second application. In addition, the Minutes stated that the parties "wish to resolve this matter without further hearing by the Tribunal" and that "the parties agree to the full and final settlement of the Application as follows" (emphasis added by the Court). The parties signed a Form 25 to confirm that the parties had resolved the application.

In June 2015, J.B. inquired about the decision on the first application. The Tribunal advised that it would be released in December 2015, however, the Board advised that its position was that the Minutes settled both applications. Despite these communications, the Vice-Chair released her decision on the first application on December 18, 2015 (the "Merits Decision"). The Vice-Chair became aware of the dispute as to the scope of the Minutes and convened a hearing to address the issue.

On November 3, 2017, the Vice-Chair released her decision (the "Interim Decision"), wherein she found that the Minutes were meant to cover both applications. She held that, despite the fact that the Minutes did not reference the first application, the parties intended to resolve both application because Paragraph 7 stated that J.B. released "[the Board and] all Personal Respondents, from any and all applications, claims, demands, complaints, or actions of any kind..." The Vice-Chair also held that the Form 25 was not part of the factual matrix in deciding the parties' intentions. On March 27, 2017, the Vice-Chair released her Reconsideration Decision, in which she found that it was an abuse of process for the Tribunal to have issued the Merits Decision and she cancelled the decision.

J.B. sought judicial review of the Tribunal's Interim Decision...