Court Of Appeal Summaries (February 6, 2023 ' February 10, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Criminal Law, Family and Matrimonial, Corporate and Company Law, Contracts and Commercial Law, Discrimination, Disability & Sexual Harassment, Family Law, Insurance Laws and Products, Disclosure & Electronic Discovery & Privilege, Constitutional & Administrative Law, Trials & Appeals & Compensation, Libel & Defamation, White Collar Crime, Anti-Corruption & Fraud, Civil Law, Privilege
• Author: Mr John Polyzogopoulos and Ines Ferreira
• Published date: 14 February 2023

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of February 6, 2023.

In Thatcher-Craig v. Clearview (Township), an Anti-SLAAP motion arose from the posting of letters from members of the community to the Township's website. The respondents owned a hops farm and wanted to expand their operations with an on-site micro-brewery and a small retail space. The respondents submitted a site plan application. The Township processed the application and placed a report from the planning department to the council on its website. An article about the proposed brewery was published in local newspapers, in response to which the Township received letters from the public commenting on the proposal, as well as the Township's failure to provide the public with adequate notice of the site plan application. The letters were posted to the Township's website, as per planning department policy. The respondents pleaded that the public comments were defamatory, inaccurate and damaging to their business, and that the Township was liable for them in negligence, for breach of fiduciary duty and defamation. The Township moved for an order dismissing the action under the Anti-SLAPP provisions in s. 137.1 of the Courts of Justice Act. The motion judge dismissed the claim in negligence but declined to dismiss the claims for defamation and breach of fiduciary duty. The Township's appeal was allowed in part, and the claim for defamation was also dismissed. The Court also commented on the latitude owed to self-represented litigants in pleadings, and the scope of qualified privilege with respect to online publication.

In Black & McDonald Limited v. Eiffage Innovative Canada Inc., the Court found that the motion judge had erred in granting a stay of proceedings in two actions arising out of a construction project, one action relating to the prime contract between the general contractor, Eiffage, and the Ministry, and the second action relating to the appellant, who was subcontracted by Eiffage in respect of the same project. The motion judge had held that British Columbia was the more convenient forum over Ontario for the consideration of the actions. The Court found that the motion judge had erred in the forum non conveniens analysis regarding the first action. In so doing, the Court found that the action should not have been stayed. The Court, having concluded Ontario was the appropriate court for the first action, held that the second action necessarily needed to be in Ontario so that they could be tried together.

In FNF Enterprises Inc. v. Wag and Train Inc., the motion judge had struck an action against LR, finding that the statement of claim did not disclose a reasonable cause of action. The appellants submitted that on the facts alleged, the motion judge erred in finding that there was no reasonable cause of action against LR based on piercing the corporate veil or under the oppression remedy, and consequently erred in not giving the appellants an opportunity to amend their claim. The Court allowed the appeal, in part, and found that with respect to the claim that value was stripped from W&T by LR (who was the sole director and shareholder of W&T), with knowledge that the corporation had incurred liabilities by breaching its lease, was actionable under the oppression remedy rather than the doctrine of piercing the corporate veil. The Court permitted the appellants to amend their statement for the sole purpose of asserting their claim for a personal remedy against LR under the oppression remedy.

In Yan v. Hutchinson, the Court dismissed a group appeal of three orders that struck the appellant's claims on the basis that they disclosed no cause of action. The College Disciplinary proceedings had found the appellant guilty of professional misconduct. The appellant believed that the investigators, lawyers and independent counsel in the disciplinary proceedings all owed her certain duties and alleged that the proceeding was unjust, defamatory, and harmful to her public reputation. The Court held that the motion judge correctly granted the motions to strike. The claims were barred either under statute, which provided the respondents general immunity from being sued as a result of disciplinary proceedings, or under the doctrine of absolute privilege. The Court concluded that the statement of claim contained radical defects incapable of being cured by amendment and dismissed the appeal in its entirety.

Other topics covered this week included a commercial lease dispute where the Court held that the order appealed from was interlocutory and was to be properly before the Divisional Court, an appeal of a dismissal order of an Anti-SLAPP action which the Court upheld, and an appeal in which the Court allowed from the Divisional Court's decision overturning an order of the License Appeal Tribunal.

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

Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78

Keywords: Insurance, Automobile Coverage, Statutory Accident Benefits, Administrative Law, Statutory Interpretation, Civil Procedure, Limitation Periods, Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10, s. 37(4), s. 37(2), s. 37(2)(g), Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G., s. 11(6), Insurance Act, R.S.O. 1990, c. I.8, Smith v. Co-operators General Insurance Co., 2002 SCC 30, Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Beaudin v. Travelers Insurance Company of Canada, 2022 ONCA 806, R. v. Yadegari, 2011 ONCA 287, 286 C.C.C. (3d) 320, Turner v. State Farm Mutual Automobile Insurance Co., (2005) 195 O.A.C. 61 (Ont. C.A.), Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed. (Markham: LexisNexis Canada, 2022)

2602203 Ontario Inc. v. Bijan Design Inc., 2023 ONCA 81

Keywords: Contracts, Real Property, Commercial Leases, Civil Procedure, Orders, Enforcement, Writs of Possession, Appeals, Jurisdiction, Final or Interlocutory, Commercial Tenancies Act, R.S.O. 1990, c. L.7, ss. 74(1), 76(2), 78(1), Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(b), 110(1), Hendrickson v. Kallio, [1932] O.R. 675, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375

Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86

Keywords: Labour and Employment, Workplace Harassment, Sexual Harassment, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 32.0.7, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Grant v. Torstar Corp., 2009 SCC 61, Bent v. Platnick, 2020 SCC 23

Black & McDonald Limited v. Eiffage Innovative Canada Inc., 2023 ONCA 91

Keywords: Contract, Construction, Prime Contract, Subcontract, Privity of Contract, Jurisdiction Simpliciter, Forum Selection Clauses, Forum Non Conveniens, Contra Proferentem, Multiple Proceedings, Public Policy, Article 2365, Civil Code of Québec, C.Q.L.R. c. CCQ-1991, Uniform Court Jurisdiction and Proceedings Transfer Act, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Young v. Tyco International of Canada Ltd. 2008 ONCA 709, Bank of Montreal v. Korico Enterprises Ltd. (2000), 50 O.R. (3d) 520, 190 D.L.R. (4th) 706 (C.A.), Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351.

FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92

Keywords: Commercial Leases, Breach of Contract, Piercing the Corporate Veil, Oppression Remedy, Improper Conduct, Business Corporations Act, R.S.O. 1990, c. B.16, s. 15, s. 92, s. 248, s. 255, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2), Buccilli v. Pillitteri, 2016 ONCA 775, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Mortazavi v. University of Toronto, 2013 ONCA 655, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), aff'd [1997] O.J. No. 3754 (C.A.), Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A.), Shoppers Drug Mart Inc. v. 6470360 Canada Inc. (Energyshop Consulting Inc./Powerhouse Energy Management Inc.), 2014 ONCA 85, Said v. Butt, [1920] 3 K.B. 497, J.S.M. Corporation (Ontario) Ltd. v. The Brick Furniture Warehouse Ltd. (2006), 16 B.L.R. (4th) 227 (Ont. S.C.), aff'd 2008 ONCA 183, Beckett v. Ridgeway Estates Ltd., 2019 ONSC 112, 6071376 Canada Inc. v. 3966305 Canada Inc., 2020 ONCA 428, Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037, J.S.M. Corporation (Ontario) Ltd. v. The Brick Furniture Warehouse Ltd., 2008 ONCA 183, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69.

Shaulov v. Law Society of Ontario, 2023 ONCA 95

Keywords: Administrative Law, Judicial Review, Jurisdiction, Constitutional Law, Charter Rights, Discrimination, Human Rights Law, Discrimination, Motion to Strike, No Reasonable Cause of Action, Canadian Charter of Rights and Freedoms, s.7, s.15, Human Rights Code, R.S.O. 1990, c. H.19, s. 46.1(2), , Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b), Judicial Review Procedures Act, R.S.O. 1990, c. J.1, s. 8(1), Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Tran v. University of Western Ontario, 2015 ONCA 295, Eliopoulos Estate v. Ontario (Minister of Health and Long-Term Care) (2006), 82 O.R. (3d) 321 (C.A.), Mussani v. College of Physicians and Surgeons of Ontario (2004), 74 O.R. (3d) 1 (C.A.), R. v. Schmidt, 2014 ONCA 188, 119 O.R. (3d) 145, Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482...