Court Of Appeal Summaries (January 9 ' 13, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Criminal Law, Family and Matrimonial, Privacy, Family Law, Privacy Protection, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Real Estate, Landlord & Tenant - Leases, White Collar Crime, Anti-Corruption & Fraud, Civil Law
• Author: Mr John Polyzogopoulos and Ines Ferreira
• Published date: 20 January 2023

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 9, 2023.

In Ontario v. Madan, Ontario sued SJM, a senior IT employee with Ontario for fraud. Ontario also sued SJM's wife and two sons, alleging that the family members were complicit in, and/or beneficiaries of a scheme that defrauded Ontario of millions of dollars. The fraud related to the government's Support for Families Program, which was commenced in April 2020 to help families with the costs associated with at-home learning necessitated by the pandemic. The appellant family members ("the appellants") filed separate statements of defence and counterclaimed against Ontario on the basis that it was contributorily negligent in that it failed to take reasonable steps to prevent and limit the frauds perpetrated by SJM. The appellants further alleged that Ontario, as the fraudster's employer, was vicariously liable for his "wrongful acts" including his invasion of the appellants' privacy. The court below struck much of their defence and counterclaims as disclosing no reasonable cause of action or defence. The Court upheld that decision.

In Northwinds Brewery Ltd. v. Caralyse Inc., the Court largely upheld the trial judge's decision finding no default by the Tenant, and that the Tenant had therefore validly exercised an option to extend the Lease for a second five-year term. However, the Landlord was successful on appeal in getting more occupation rent (although Court did not call it "occupation rent", but rather "non-lease-based rent") for a part of the common areas that the Tenant was exclusively occupying (a shed the Tenant had installed). The court below had limited "occupation rent" arrears to two years on the basis of the regular two-year limitation period. However, the Court found that the Real Property Limitations Act applied to this claim to "non-lease based" rent arrears, whether it was characterized as rent or damages, since the amount awarded fell within the RLPA's definition of "rent" as "periodical sums of money charged upon or payable out of land."

In Assayag-Shneer v. Shneer, the Court confirmed that courts do not have authority under the Divorce Act to amend support orders in the absence of a material change in circumstances. However, courts are entitled to exercise their discretionary power to alter post-judgement interest pursuant to the Courts of Justice Act on arrears for a default of a support order notwithstanding a finding that there is no material change in circumstances. Perhaps most interestingly, the Court determined that the common law doctrine on the non-enforceability of contractual penalties and section 98 of the Courts of Justice Act, which gives a court the power to relieve against penalties and forfeitures, are inapplicable to vary the terms of a consent court order. Once a clause in a settlement is inserted in a consent court order, it cannot be set aside by a court later as penal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Ontario v. Madan, 2023 ONCA 18

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Fraud, Conversion, Unjust Enrichment, Negligence, Contributory Negligence, Vicarious Liability, Crown Liability, Remedies, Mareva Injunctions, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, No Reaasonable Defence, Courts of Justice Act, R.S.O. 1990, c. C.43, S. 98, Civil Remedies Act, 2001, S.O. 2001, c. 28, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592, Garland v. Consumers' Gas Co., 2004 SCC 25, Love v. Turf Management Systems Inc. (1997), 38 B.L.R. (2d) 70 (Ont. Gen. Div.), Jones v. Tsige, 2012 ONCA 32, Owsianik v. Equifax Canada Co., 2022 ONCA 813, Bazley v. Curry, [1999] 2 S.C.R. 534, Evans v. Bank of Nova Scotia, 2014 ONSC 2135, Walters (Litigation Guardian of) v. Ontario, 2017 ONCA 53, Ontario v. Phaneuf, 2010 ONCA 901, Bruno v. Dacosta, 2020 ONCA 602, Francis v. Ontario, 2021 ONCA 197, Just v. British Columbia, [1989] 2 S.C.R. 1228, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789

Assayag-Schneer v. Schneer, 2023 ONCA 14

Keywords: Family Law, Divorce, Support, Orders, Variation, Material Change in Circumstances, Contracts, Minutes of Settlement, Penal Clauses, Setting Aside, , Civil Procedure, Post-Judgment Interest Rate, Variation, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 15.2(4)(c), 15.2(6), 17(1), 17(4.1), Courts of Justice Act, R.S.O. 1990, c. C.43., ss. 98, 129, 130, Family Law Rules, O. Reg. 114/99, r. 25(19), Crosbie v. Crosbie, 2012 ONCA 516, L.M.P. v. L.S., 2011 SCC 64, Willick v. Willick, [1994] 3 S.C.R. 670, Robert McAlpine Ltd. v. Byrne Glass Enterprises Ltd., [2001] O.J. No. 3208 (C.A.), Eastwalsh Homes Ltd. v. Anatal Development Corporation et al. (1995), 26 O.R. (3d) 528 (Gen. Div.), Peachtree II Associates - Dallas L.P. v. 857486 Ontario Ltd. (2005), 76 O.R. (3d) 362 (C.A.), Dunlop Pneumatic Tyre Co. Ltd. v. New Garage & Motor Co. Ltd., [1915] A.C. 79, (H.L.), Herskovits v. Herskovits (2001), 17 R.F.L. (5th) 339 (Ont. S.C.)

Sutton v. Sutton, 2023 ONCA 16

Keywords: Family Law, Spousal Support, Equalization of Net Family Property, Imputed Income, Civil Procedure, Appeals, Fresh Evidence, Family Law Act, R.S.O. 1990, c. F.3, s. 33(10), Palmer v. The Queen, [1980] 1 S.C.R. 759

Spot Coffee Park Place Inc. v. Concord Adex Investments Limited, 2023 ONCA 15

Keywords: Contracts, Interpretation, Exclusion Clauses, Real Property, Commercial Leases, Torts, Negligent Misrepresentation, Civil Procedure, Appeals, Standard of Review, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, D.L.G. & Associates Ltd. v. Minto Properties, 2015 ONCA 705, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Corner Brook (City) v. Bailey, 2021 SCC 29, Ontario First Nations (2002) Limited Partnership v. Ontario Lottery Gaming Corporation, 2021 ONCA 592

Northwinds Brewery Ltd. v. Caralyse Inc., 2023 ONCA 17

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Rentable Area, Options to Extend, Right to Exercise, Default, Remedies, Occupation Rent, , Civil Procedure, Limitation Periods, Costs, Partial Indemnity, Proportionality, Reasonable Expectations, Rules of Civil Procedure, r. 57, Limitations Act, 2002, SO 2002, c 24, Sched B, s. 17(1), Real Property Limitations Act, RSO 1990, c L15, Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629, Sterling Waterhouse Inc. v. LMC Endocrinology Centres (Toronto) Ltd., 2015 ONSC 3987, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Smith Estate v. Rotstein, 2011 ONCA 491, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.)
Short Civil Decisions

Chiappino & Associates Limited v. 6891799 Canada Inc., 2023 ONCA 22

Keywords: Costs Endorsement

Taylor v. Hanley Hospital Inc., 2023 ONCA 25

Keywords: Costs Endorsement

Kudrocova v. Kronberger, 2023 ONCA 26

Keywords: Family Law, Parenting, Decision-Making, Parental Alienation, Variation, Material Change in Circumstances, De Facto Status Quo

CIVIL DECISIONS

Ontario v. Madan, 2023 ONCA 18

[Doherty, Feldman and Trotter JJ.A.]

Counsel:

C. Du Vernet and C. McGoogan, for the appellants
C. Wayland and A. Huckins, for the respondent

Keywords: Torts, Intrusion Upon Seclusion, Breach of Privacy, Fraud, Conversion, Unjust Enrichment, Negligence, Contributory Negligence, Vicarious Liability, Crown Liability, Remedies, Mareva Injunctions, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, No Reaasonable Defence, Courts of Justice Act, R.S.O. 1990, c. C.43, S. 98, Civil Remedies Act, 2001, S.O. 2001, c. 28, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592, Garland v. Consumers' Gas Co., 2004 SCC 25, Love v. Turf Management Systems Inc. (1997), 38 B.L.R. (2d) 70 (Ont. Gen. Div.), Jones v. Tsige, 2012 ONCA 32, Owsianik v. Equifax Canada Co., 2022 ONCA 813, Bazley v. Curry, [1999] 2 S.C.R. 534, Evans v. Bank of Nova Scotia, 2014 ONSC 2135, Walters (Litigation Guardian of) v. Ontario, 2017 ONCA 53, Ontario v. Phaneuf, 2010 ONCA 901, Bruno v. Dacosta, 2020 ONCA 602, Francis v. Ontario, 2021 ONCA 197, Just v. British Columbia, [1989] 2 S.C.R. 1228, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789

Facts:

The respondent, His Majesty the King in Right of Ontario ("Ontario"), sued SJM, his wife, SM, and two sons, CM and UM. SM, CM and UM are the appellants ("the appellants"). Ontario alleged that SJM, using his IT position at the Ontario Ministry of Education (the "Ministry"), defrauded Ontario of millions of dollars. Ontario further alleged that the appellants were complicit in, and/or beneficiaries of the fraud. The appellants filed separate statements of defence.

Ontario alleged two fraudulent schemes. The first scheme targeted the Support for Families Program ("SFFP"), to support at-home learning necessitated by the pandemic and administered by the Ministry to provide grants of $200 to $250 per student. Applications were made to the Ministry using the online process that SJM helped develop.

Ontario alleged that between April 2020 and August 2020, SJM and the appellants made thousands of fraudulent applications under the SFFP using fictitious names. The applications were approved and funds paid into one of the...