Court Of Appeal Summaries (January 23 ' 27, 2023)

• Published date: 31 January 2023
• Subject Matter: Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Criminal Law, Family and Matrimonial, Insurance Laws and Products, Trials & Appeals & Compensation, Human Rights, Real Estate, Landlord & Tenant - Leases, White Collar Crime, Anti-Corruption & Fraud, Civil Law, Wills/ Intestacy/ Estate Planning
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 23, 2023. It was a very busy week.

The Court in Rabin v. 2490918 Ontario Inc. considered an appeal from a tenant concerning s.23 of the Commercial Tenancies Act and whether consent to an assignment had been unreasonably withheld by their landlord. The application judge had found that the appellant had waived the requirement under the lease and that the appellant had failed to show that the respondent had either refused to consent to the assignment or unreasonably withheld its consent. The Court found that the application judge had incorrectly addressed and applied the doctrine of waiver, which was not raised by the parties. In applying the doctrine, the application judge erred in construing delay (the landlord's failure to provide a timely response to the tenant's request for consent) as a waiver. Ultimately, the Court found that the landlord had unreasonably withheld consent when they failed to provide a response to the request for consent within the 15-day time period contemplated under the lease.

In Costanza v. Dejardins Financial Security Life Assurance Company, the appellant insurer appealed from the judgment of the application judge declaring that the life insurance policy of which the respondent, as beneficiary, was valid, subsisting and binding on the insurer. The issues raised in the appeal concerned the duty of an insured to disclose material facts to their insurer and incontestability once a policy has been in force for two years or more during the life of the insured. The Court dismissed the appeal and declined to admit fresh evidence on the basis that the fresh evidence could not reasonably be expected to have affected the result of the application. The Court found that, while the application judge erred in disregarding admissions by witnesses that the deceased was convicted of an assault which could lead to invalidating the policy, the Court found no error in the application judge's finding that even if accepting the conviction had been proven on the application, the insurer had failed to establish that the deceased had the intent required for civil fraud at the time he completed the application for insurance. The Court held that, in absence of palpable and overriding error, the finding by the application judge was entitled to deference.

In Continental Currency Exchange Canada Inc. v. Sprott, the Court upheld the motion judge's decision to grant the respondents a stay of proceedings due to the appellants' access to documents and emails belonging to the respondents that were confidential and privileged. The Court held that the motion judge correctly applied the test from Celanese Canada Inc. v. Murray Demolition Corp., to assess whether privileged and confidential information attributable to a solicitor and client relationship will prejudice the party possessing the privilege. The Court found that the motion judge's conclusion that the appellants' access to privileged information regarding the litigation was a serious risk to the respondents' privilege and the appropriate remedy was a stay of proceedings.

There were two subsidized housing judicial review appeals (MacKenzie v. Ottawa Community Housing Corporation and Ali v. Peel). Both appeals were dismissed and the initial decisions of the governmental authorities were upheld.
Other topics covered this week included granting an application for intervenor status in a case involving habeas corpus, an appeal of a dismissal of a motion to strike out pleadings, a trial decision determining issues of civil fraud and conspiracy and a refusal of leave to amend pleadings.

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

Corrigan v. Ontario, 2023 ONCA 39

Keywords: Crown Liability, Civil Procedure, Striking Pleadings, Nullity, Notice of Claim, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, Human Rights Code, R.S.O. 1990, c. H.19, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, r. 19.02(1)(b), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Zeus v. Spick, [2000] O.J. No. 3758 (S.C.), aff'd [2001] O.J. No. 2848 (C.A.), Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.), Miguna v. Ontario (Attorney General) (2005), 262 D.L.R. (4th) 222 (Ont. C.A.), Noddle v. The Ontario Ministry of Health, 2019 ONSC 7337, Aba-Alkhail v. University of Ottawa, 2012 HRTO 656, Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319

Wong v. Li, 2023 ONCA 42

Keywords: Torts, Fraud, Misrepresentation, Breach of Fiduciary Duty, Law Society of Upper Canada v. Oscar Choi-Wah Wong, 2012 ONLSHP 0180, Law Society of Upper Canada v. Oscar Choi-Wah Wong, 2013 ONLSAP 0031, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, F.H. v. McDougall, 2008 SCC 53, R. v. G.F., 2021 SCC 20, R. v. Dinardo, 2008 SCC 24

Benbella v. The National Dental Examining Board of Canada , 2023 ONCA 56

Keywords: Administrative Law, Regulated Professions, Civil Procedure, Appeals, Standard of Review, Correctness, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), McCreight v. Canada (Attorney General), 2013 ONCA 483, Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618

Ali v. Peel (Regional Municipality), 2023 ONCA 41

Keywords: Administrative Law, Judicial Review, Standard of Review, Reasonableness, Remedies, Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, O. Reg. 367/11, s. 1(1)-1(2), s.47, s.48, s.54, s.58, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, Briggs v. Durham (Police Services Board), 2022 ONCA 823, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

Horani v. Manulife Financial Corporation, 2023 ONCA 51

Keywords: Torts, Occupier's Liability, Slip and Fall, Civil Procedure, Amending Pleadings, Appeals, Jurisdiction, Final or Interlocutory, Rules of Civil Procedure, rr. 26.01, 48.04(1), Hendrickson v. Kallio, [1932] O.R. 675 (C.A), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Denton v. Jones, 13 O.R. (2d) 419 (S.C.), Ontario (Securities Commission) v. McLaughlin, 2009 ONCA 280, 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, Trillium Power Wind Corp. v. Ontario, 2019 ONSC 6905, Hill v. Ortho Pharmaceutical (Canada) Ltd., [1992] O.J. No. 1740, LML Investments Inc. v Choi (2007), 85 O.R. (3d) 351 (S.C.), Jetport v Jones Brown Inc., 2013 ONSC 2740, Lugen Corporation v Starbucks Coffee Canada Inc., 2014 ONSC 7141, Denis v Lalonde, 2016 ONSC 5960, Secure Solutions Inc. v. Smiths Detection Toronto Ltd., 2017 ONSC 2401, A.G.C. Mechanical Structural Security Inc. v. Rizzo, 2013 ONSC 1316, BNL Entertainment Inc. v. Ricketts, 2015 ONSC 1737, Fruitland Juices Inc. v. Custom Farm Service Inc. et al., 2012 ONSC 4902, Cromb v. Bouwmeester, 2014 ONSC 5318, Alofs v. Blake, Cassels & Graydon LLP, 2017 ONSC 950, Chokler v. FCA Canada Inc. 2017 ONSC 4494, Conway v. Law Society of Upper Canada, [2016] O.J. No. 451, Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 21 O.R. (3d) 753, Ginkel v. East Asia, 2010 ONSC 905, Whiten v Pilot Insurance Co., [2002] S.C.J. No. 19, Family Delicatessen Ltd. V. London (City), 2006 CanLII 5135 (Ont. C.A), John Sopinka, Mark Gelowitz and David W. Rankin, The Conduct of an Appeal, 5th ed. (Toronto: Lexis Nexis, 2022)

MacKenzie v. Ottawa Community Housing Corporation, 2023 ONCA 43

Keywords: Administrative Law, Judicial Review, Standard of Review, Reasonableness, Statutory Interpretation, Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, Part V, s 38, s 42(1), s 43(1), s 45, s 46(1), s 52(1), Ontario Regulation 367/11, made under the Housing Services Act, 2011, S.O. 2011, c. 6, Sched. 1, Sched. 2, s 28(1), s 28(2), Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, Briggs v. Durham (Police Services Board), 2022 ONCA 823, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Ali v. Peel (Regional Municipality), 2023 ONCA 41

McGrath v. Joy , 2023 ONCA 46

Keywords: Wills and Estates, Testamentary Capacity, Holographic Wills, Codicils, Civil Procedure, Appeals, Motions, Reconsideration, Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 6, Rules of Civil Procedure, rr. 37.14(6), 57.03(1) and 59.06(2), Pastore v. Aviva Canada Inc., 2012 ONCA 887, Mujagic v. Kamps, 2015 ONCA 360, Meridian Credit Union Limited v. Baig, 2016 ONCA 942, First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54, Antonyuk v. Antonyuk, 2022 ONCA 145, Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743

Sigma Capital Management Group Inc. v. Benzer Limited , 2023 ONCA 65

Keywords:Security for Costs, Legal Costs, Settlement Funds, Contractual Interpretation, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Edelstein v. Monteleone, 2017 ONSC 2717

Costanza v. Dejardins Financial Security Life Assurance Company , 2023 ONCA 54

Keywords: Insurance, Duty to Disclose, Civil Fraud, Evidence, Standard of Review, Insurance Act, R.S.O. 1990, c. I.8, s. 178, s. 183(1), ss. 183(3), s. 184(2), 189.1, Evidence Act, R.S.O. 1990, c. E.23, s. 22.1, Gregory v....