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

• Published date: 20 December 2022
• Subject Matter: Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Real Estate and Construction, Family and Matrimonial, Corporate and Company Law, Family Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation, Construction & Planning, Civil Law, Divorce
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the Court of Appeal for Ontario for the week of December 12, 2022.

In Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, the Court undertook a complex jurisdictional analysis for an international insurance coverage dispute resulting from a handful of environmental contamination class actions. The Court first confirmed that the framework set out by the Supreme Court of Canada's landmark decision in Club Resorts Ltd. v. Van Breda for assumed jurisdiction applies equally to contractual disputes as it does to claims in tort. The Court then provided guidance on applying the presumptive connecting factor of "carrying on business in Ontario" in the international insurance coverage context. The Court ultimately held that the Ontario court had jurisdiction simpliciter over Vale's many insurers in this dispute, and that Ontario was not forum non conveniens.

In Abraham v. Gallo, the Court considered whether a bare talaq divorce was recognized as valid in Canada. The motion judge found that the divorce was recognized and valid since the Province had recognized the divorce by issuing a marriage license to the respondent for his second marriage. The Court held that the issuance of a marriage license did not serve to recognize the registered bare talaq divorce as a valid foreign divorce, as it had only been registered in Egypt but not granted by a divorce-granting authority for the purposes of s. 22 of the Divorce Act. The Court further held that bare talaq divorces, without more, were not recognizable as valid in Canada. The Court stated that bare talaq divorces lacked adjudicative oversight and accordingly, ran afoul of public policy issues such as potential for abuse and lack of natural justice.

In Tall Ships Development Inc. v. Brockville (City), the appellant, Brockville, appealed the order of the application judge setting aside three arbitral awards and appointing a new arbitrator to preside over the matters upon reconsideration. Brockville argued that the questions before the arbitrator were questions of mixed fact and law, which did not give rise to any right of appeal pursuant to the Arbitration Act and the Arbitration Agreement as agreed upon by the parties. The Court found that the application judge had erred in considering issues of mixed fact and law and law alone as the Arbitration Agreement specifically provided that there could be no appeals on the law. The Court further noted that the application judge's interpretation of the contracts in dispute required her to consider the conduct of the parties, the factual matrix and the circumstances giving rise to the parties' agreement in accordance with Sattva. The Court allowed the appeal reversing the application judge's decision to set aside all three arbitral awards.

Other topics included several family law appeals relating to a s. 30 assessment, extension of time to perfect an appeal, quashing an appeal from a garnishment order, and a wrongful retention of a child application, and finally, a corporate dispute where a Norwich Order was unsuccessfully sought to obtain pre-action discovery.

Table of Contents

Civil Decisions

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862

Keywords: Contracts, Insurance, Interpretation, Commercial General Liability, Excess Insurance, Coverage, Pollution, Private International Law, Conflict of Laws, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Comity, Courts of Justice Act, R.S.O. 1990, c. C.43, Insurance Act, R.S.O. 1990, c. I.8, ss. 20(3), 21, 123, Foreign Insurance Companies Act, R.S.C. 1970, c. I-16, ss. 2, 4, Rules of Civil Procedure, r. 17.02, Spar Aerospace Ltd v. American Mobile Satellite Corp., 2002 SCC 78, Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, Hilton v. Guyot, 159 U.S. 113 (1895), Zingre v. The Queen, [1981] 2 S.C.R. 392, The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812), Tolofson v. Jensen; Lucas (Litigation Guardian of) v. (Gagnon), [1994] 3 S.C.R. 1022, Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897, Chevron Corp. v. Yaiguaje, 2015 SCC 42, Kaynes v. BP, plc, 2014 ONCA 580, Kaynes v. BP, plc, 2016 ONCA 601, Teck Cominco Metals Ltd. v. Lloyd's Underwriters, 2009 SCC 11, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Neophytou v. Fraser, 2015 ONCA 45, Stuart Budd & Sons Ltd. v. IFS Vehicle Distributors ULC, 2016 ONCA 977, OMI Holdings v. Royal Insurance Co. of Canada, 149 F.3d 1086, Daimler AG v. Bauman, 571 U.S. 117, Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, Bristol Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, Domtar, Inc. v. Niagara Fire Insurance Co., 533 N.W.2d 25 (Minn.), Burger King Corp. v. Rudzewicz, 471 U.S. 462, Farmers Insurance Exchange v. Portage La Prairie Mutual Insurance Co., 907 F.2d 911 (9th Cir. 1990), International Shoe Co. v. Washington, 326 U.S. 310, Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, H.M.B. Holdings Ltd. v. Antigua and Barbuda, 2021 SCC 44, Haaretz.com v. Goldhar, 2018 SCC 28, Breeden v. Black, 2012 SCC 19, Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18, British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Arthur T. von Mehren and Donald T. Trautman, "Recognition of Foreign Adjudications: A Survey and A Suggested Approach" (1968) 81 Harv. L. Rev. 1601

Weidenfeld v. Weidenfeld], 2022 ONCA 860

Keywords: Family Law, Parental Support, Child Support, Foreign Orders, Enforcement, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990 c. C.43, s. 7(5), s.106, Family Law Act, R.S.O. 1990, c. F.3, s. 32, Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, s. 2(3) Enforcement of Money Judgments Act, SNB, 2013, c. 23, s. 34, Support Enforcement Act, S.N.B. 2005, c. S-15.5, Family Law Rules, O/Reg. 114/99, r. 1(8), Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, Oliveira v. Oliveira, 2022 ONCA 218

Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 861

Keywords: Contracts, Interpretation, Arbitration Agreements, Civil Procedure, Appeals, Standard of Review, Arbitration Act, 1991, S.O. 1991, c. 17, s. 45(2) and 46, Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254, Mensula Bancorp Inc. v. Halton Condominium Corporation No. 137, 2022 ONCA 769, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance, 2016 SCC 37, Tall Ships Landing Devt. Inc. v. City of Brockville, 2019 ONSC 6597, Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., [1999] 1 S.C.R. 619, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Thomas J. Kelleher Jr. & G. Scott Walter, eds, Smith, Currie & Hancock's Common Sense Construction Law: A Practical Guide for the Construction Professional, 4th ed (Hoboken, USA: John Wiley & Sons, Inc., 2009)

Van Delst v. Hronowsky, 2022 ONCA 881

Keywords: Family Law, Equalization of Net Family Property, Civil Procedure, Appeals, Abuse of Process, Frivolous and Vexatious, Rules of Civil Procedure, Rule 2.1, Dickie v. Dickie, 2007 SCC 8, Bell v. Fishka, 2022 ONCA 683

Parmar v. Flora, 2022 ONCA 869

Keywords: Family Law, Custody and Access, Child Abduction, Wrongful Retention, Habitual Residence, COVID-19, Hague Convention on the Civil Aspects of International Child Abduction, 1980, Can. T.S. 1983 No. 35, Art. 3, Family Law Rules, rr. 10(5), 1(8.4)(2), Ludwig v. Ludwig, 2019 ONCA 680, Office of the Children's Lawyer v. Balev, 2018 SCC 16, Purcaru v. Purcaru, 2010 ONCA 92, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193

Bluemoon Capital Ltd. v. Ceridian HCM Holding Inc., 2022 ONCA 868

Keywords: Corporations, Civil Procedure, Equitable Remedies, Interlocutory Injunctions, Pre-Action Discovery, Norwich Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 96(1), Rules of Civil Procedure, r. 39.03, GEA Group AG v. Ventra Group Co. (2009), 96 O.R. (3d) 481, 1654776 Ontario Limited v. Stewart, 2013 ONCA 184, Straka v. Humber River Regional Hospital (2000), 51 O.R. (3d) 1 (C.A.)

Rodriguez v. Vella, 2022 ONCA 870

Keywords: Family Law, Parenting, Assessment of Needs of Child, Civil Procedure, Orders, Enforcement, Contempt, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 30

Abraham v. Gallo, 2022 ONCA 874

Keywords: Family Law, Divorce, Foreign Divorces, Validity, Corollary Relief, Spousal Support, Child Support, Civil Procedure, Private International Law, Conflict of Laws, Jurisdiction, Real and Substantial Connection, Forum Shopping, Public Policy, Natural Justice, Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s.22(1), s.22(2), s.22(3), Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, Abdulla v. Al-Kayem, 2021 ONSC 3562, Al Sabki v. Al Jajeh, 2019 ONSC 6394, Cheng v. Liu, 2017 ONCA 104, Okmyansky v. Okmyansky, 2007 ONCA 427, Novikova v. Lyzo, 2019 ONCA 821, Wilson v. Kovalev, 2016 ONSC 163, Canada v. Hazimeh, 2009 FC 380, Butt v. Canada (Citizenship and Immigration), 2010 CanLII 78765 (CA IRB), Beals v. Saldanha, 2003 SCC 72, Ali v. Ibrahim, 2019 ONSC 300, Zeineldin v. Elshikh, 2020 ONSC 1160, Wang v. Lin, 2013 ONCA 33, Knowles v. Lindstrom, 2014 ONCA 116, Li v. Li, 2021 ONCA 669, Orabi v. Qaoud, 2005 NSCA 28, L.G.V. v. L.AP., 2016 NBCA 23

CIVIL DECISIONS

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862

[Feldman, Lauwers and Zarnett JJ.A.]

COUNSEL:

1. Hubbard, H. Afarian, A.S. Lewis, A. Stern and A. Jarvis, for the appellants Vale Canada Limited (C70291, C70292, C70288, C70290...