Court Of Appeal Summaries (January 16 ' 20, 2023)

• Published date: 24 January 2023
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Litigation, Mediation & Arbitration, Family and Matrimonial, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Family Law, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 16, 2023.

In Moran v. Fabrizi, the appellant, TM, was injured in a car accident as the passenger of a car being driven by EI. The respondent, OF, ran a red light causing the car accident. TM sued OF, EI and TM's mother, the car's owner. TM settled for $220,000. OF then sued DC in a third party action seeking contribution and indemnity of the settlement amount claiming DC had engaged in acts of violence (road rage) preceding the accident. OF claimed that DC's actions contributed to OF running the red light. The trial judge found DC to be 50 percent responsible for causing TM's injuries and required him to indemnify OF for $110,000. DC argued that the trial judge erred in the application of the test for causation.

The Court found that the trial judge accurately set out the law of causation in Clements v. Clements, noting that the trial judge's language of application tracked closely with DC's assertion that "[I]nherent in the phrase 'but for' is a requirement that [DC's] negligence was necessary to bring about the injury." DC argued that OF did not succeed in making out the 'agony of the moment' (emergency) defence at trial and so DC's behaviour could not in law be a cause of the accident. The Court clarified that the doctrine can provide a defence that goes to the standard of care element of negligence. The defendant can use it as a shield against responsibility for conduct in a situation of emergency or panic. However, the doctrine does not have any bearing on the causation analysis. The Court upheld the trial judge's decision.

Other topics this week included failing to close on a APS for land, stay pending appeal in a very contentious estates dispute involving a 100 year old litigant represented by a litigation guardian, and the partial lifting of an automatic stay pending appeal on the basis of undue hardship in a corporate divorce dispute.

Table of Contents

Civil Decisions

Hrovic v. Hrovic, 2023 ONCA 27

Keywords: Corporations, Family Law, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Lifting of Automatic Stay, Rules of Civil Procedure, r. 63.01(1), r. 63.01(2), r. 63.01(5), Ryan v. Laidlaw Transportation Ltd. (1994), 19 O.R. (3d) 547 (Ont. C.A.), Horeca Financial Services v. Light, 2014 ONCA 811, SFC Litigation Trust v. Chan, 2018 ONCA 710, Mortimer v. Cameron, [1993] O.J. No. 4169 (C.A.)

Gefen v. Gefen, 2023 ONCA 19

Keywords: Wills and Estates, Capacity, Estate Trustees During Litigation, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Substitute Decisions Act, S.O. 1992, c. 30, s. 22, Rules of Civil Procedure, r. 7.03, 39.03, Gefen Estate v. Gefen, 2022 ONCA 174, Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281

Nguyen v. Zaza, 2023 ONCA 34

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Time of the Essence, Deposits, Forfeiture, 1854329 Ontario Inc. v. Cairo, 2022 ONCA 744, 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, Domicile Developments Inc. v. MacTavish (1999), 175 D.L.R. (4th) 334 (Ont. C.A.), Benedetto v. 2453913 Ontario Inc., 2019 ONCA 149, R. v. R.E.M., 2008 SCC 51

Moran v. Fabrizi, 2023 ONCA 21

Keywords: Torts, Negligence, Motor Vehicle Accident, Causation, But For Test, Standard of Care, Defences, "Agony of the Moment", Insurance Coverage, Priority Dispute, Negligence Act, R.S.O. 1990 c. N. 1., Bell Canada v. Cope (Sarnia) Ltd., (1980),31 O.R. (2d) 571(C.A.),119 D.L.R. (3d) 254, Pet Valu Inc. v. Thomas, 2004 CarswellOnt 370(S.C.), J.K. v. Ontario, 2017 ONCA 902, Clements v. Clements, 2012 SCC 32, em>Isaac Estate v. Matuszynska, 2018 ONCA 177, Report on Contribution Among Wrongdoers and Contributory Negligence (Toronto: Ontario Law Reform Commission, 1988), Erika Chamberlain & Stephen Pitel, eds, Fridman's The Law of Torts in Canada, 4th ed (Toronto: Carswell, 2022), Fleming in the Law of Torts, 6th ed. (Sydney: Law Book Co., 1983)

Short Civil Decisions

Royal Bank of Canada v. Hogarth, 2023 ONCA 30

Keywords: Civil Procedure, Summary Judgment, Deference

LeBlanc v. Alghamdi, 2023 ONCA 37

Keywords: Civil Procedure, Vexatious Litigants, Frivolous, Vexatious and Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s.140, s.19, s. 140, Rules of Civil Procedure, r. 59.06

CIVIL DECISIONS

Hrovic v. Hrovic, 2023 ONCA 27

[Coroza J.A. (Motion Judge)]

COUNSEL:

G.M. Sidlofsky, for the responding party (M53912)/moving party (M53914)
D.A. Taub and S. Mosonyi, for the moving party (M53912)/responding party (M5914)

Keywords: Corporations, Family Law, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Lifting of Automatic Stay, Rules of Civil Procedure, r. 63.01(1), r. 63.01(2), r. 63.01(5), Ryan v. Laidlaw Transportation Ltd. (1994), 19 O.R. (3d) 547 (Ont. C.A.), Horeca Financial Services v. Light, 2014 ONCA 811, SFC Litigation Trust v. Chan, 2018 ONCA 710, Mortimer v. Cameron, [1993] O.J. No. 4169 (C.A.)

FACTS:

The underlying action related to a division of a business built by the appellant, DH and respondent, MH. The trial judge was required to determine the respective shareholdings of the parties and the value of that shareholding. The trial judge determined that the respondent held 50 percent of the company and the value of the business was $10,800,000. The Trial Judge ordered that the appellant pay the respondent $5,400,000 to purchase all her shares in the company. The appellant appealed and an automatic stay of the trial order was imposed pursuant to r. 63.01(1) of the Rules of Civil Procedure.

There were two motions before the Court. The first was a motion by which the appellant wanted to file an extended factum of 45 pages (exceeding the 30-page limit).

In the second motion, the respondent requested that the automatic stay pending appeal be lifted in respect of $2,686,437.31. According to the respondent, this amount represented the appellant's "best position" were he to succeed on all issues in the appeal. In other words, this is the amount that the appellant owes the respondent even taking into account his valuation advanced at trial. The respondent argued that she will suffer financial hardship if the stay is not lifted, and the appellant's appeal in respect of that amount is not meritorious.

ISSUES:

(1) Should the order be made allowing the appellant to submit an extended factum (exceeding 30 pages)?

(2) Should the Court lift the automatic stay imposed pursuant to r. 63.01(1)?

HOLDING:

Motion granted.

REASONING:

(1) Yes.

The Court was persuaded by the appellant's submission that there was some complexity to this matter and granted an extension to file a factum that is 45 pages in length, particularly since the respondent took no position. The Court...