Court Of Appeal Summaries (February 20, 2023 ' February 24, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Energy and Natural Resources, Family and Matrimonial, Oil, Gas & Electricity, Family Law, Arbitration & Dispute Resolution, Class Actions, Trials & Appeals & Compensation, Dodd-Frank, Consumer Protection Act, Civil Law, Wills/ Intestacy/ Estate Planning
• Author: Mr John Polyzogopoulos
• Published date: 28 February 2023

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 20 to 24, 2023.

In Palichuk v. Palichuk, a series of applications were brought following a family breakdown that resulted in changes to an elderly mother's will, powers of attorney, and title to her property. The Court held that the mother had the legal capacity to manage her affairs, which was consistent with the uncontroverted expert opinion. Furthermore, because the mother was still alive, the Court held that it was not appropriate for it to determine the validity of any of the executed documents or whether undue influence being exerted over her. This was because any of the documents, such as her Will, could be changed at any time. Where a question is hypothetical or contingent on future events, no decision should be rendered until the hypothetical set of facts comes to fruition.

In Rebuck v. Ford, the Court upheld the motion judge's decision to grant summary judgment dismissing a class action against Ford for alleged misleading advertising in respect of the mileage achieved by its cars. Ford was found to have followed the federal government's guidelines in publishing its EnerGuide labels on its vehicles, even though there were higher standards used to determine fuel consumption prescribed by other countries, such as the U.S.

Other topics this week included the dismissal of a motion for an interlocutory injunction by a First Nations group in order to stop the cutting down of old trees at Osgoode Hall, an appeal that overturned a motion judge's order precluding a limitations defence on a Rule 21 motion, and a family law matter.

Table of Contents

Civil Decisions

Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122

Keywords: Aboriginal Law, Real Property, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a), Haudenosaunee Development Institute v. Metrolinx, 2023 ONSC 1170, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

Canada (Attorney General) v. M.C., 2023 ONCA 124

Keywords: Property, Firearms, Regulation, Civil Procedure, Appeals, Interveners, Firearms Act, S.C. 1995, c. 39, Rules of Civil Procedure, r. 13.01, R. v. M.C. et. al., 2022 ONSC 6299, Butty v. Butty (2009), 98 O.R. (3d) 713 (C.A.), McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972 (Ont. C.A.), Buccilli v. Pillitteri, 2014 ONCA 337, Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Tomec v. Economical Mutual Insurance Company, 2019 ONCA 839

Palichuk v. Palichuk, 2023 ONCA 116

Keywords: Wills and Estates, Powers of Attorney, Capacity, Undue Influence, Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 2, 6, 22, 32, 38, 45, 49, 55, 66, 67, Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, Courts of Justice Act, R.S.O. 1990, c. C. 43, ss. 97, 133, Succession Law Reform Act, R.S.O., 1990, c. S. 26, s. 22, Rules of Civil Procedure, r. 14.05(3)(a), Leonard v. Zychowicz, 2022 ONCA 212, Re Skinner, [1970] 3 O.R. 35 (H.C.J.), Furfaro v. Furfaro (1986), 22 E.T.R. 241, 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, Curtis v. Sheffield (1882), 21 Ch. D. 1, Duke of Marlborough v. Lord Godlophin (1750), Ves. Sen. 61, Y.P. v. M.L.S., 2006 MBCA 32, S.A. (Trustee of) v. M.S., 2005 ABQB 549, Brandon v. Brandon, [2001] O.J. No. 2986, aff'd [2003] O.J. No. 4593, Rubner v. Bistricer, 2018 ONSC 1934, Dempster v. Dempster, 2008 CanLII 2747 (Ont. S.C), Stern v. Stern, (2003) 49 E.T.R. (2d) 129 (Ont. S.C), Foley v. McIntyre, 2015 ONCA 382, Pecore v. Pecore, 2007 SCC 17, Vanier v. Vanier, 2017 ONCA 561, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, O'Meara v. Miller, 2021 ONSC 5919, McFlow Capital Corp. v. James, 2021 ONCA 753, Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225, BradJay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Brian A. Schnurr, Estate Litigation, loose-leaf, 2nd ed., vol. 2, (Toronto: Thomson Reuters Canada Limited, 2021)

Toussaint v. Canada (Attorney General), 2023 ONCA 117

Keywords: Health Law, Universal Health Care, Constitutional Law, Right to Life, Security of the Person, Charter Claims, International Law, Human Rights, Customary International Law, Discrimination, Administrative Law, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Defences, Limitation Periods, Jurisdiction, Limitations Act, 2002, S.O. 2002, c. 24, s.5, Canadian Charter of Rights and Freedoms, International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can T.S. 1976 No. 47. 6 I.L.M. 368, Rules of Civil Procedure, r. 21.01, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Kaynes v. BP p.l.c., 2021 ONCA 36, Clark v. Ontario (Attorney General), 2019 ONCA 311, Brozmanova v. Tarshis, 2018 ONCA 523, Salewski v. Lalonde, 2017 ONCA 515, Ridel v. Goldberg, 2017 ONCA 739, Skof v. Bordeleau, 2020 ONCA 729, Hopkins v. Kay, 2014 ONCA 514

Wang v. Li, 2023 ONCA 119

Keywords: Family Law, Civil Procedure, Vexatious Litigants, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b), Rules of Civil Procedure, r. 2.1, Bell v. Fishka, 2022 ONCA 683, Van Delst v. Hronowsky, 2022 ONCA 881, Chirico v. Szalas, 2016 ONCA 586, Overtveld v. Overtveld, 2022 ONCA 269

Rebuck v. Ford Motor Company, 2023 ONCA 121

Keywords: Contracts, Consumer Protection, Competition Law, False or Misleading Advertising, Civil Procedure, Class Proceedings, Summary Judgment, Competition Act, R.S.C. 1985, c. C-34, s. 1.1, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A., s. 14, s. 17, s. 52(1), s. 52(1.1)(a), s. 52(4), Guidelines for Determination and Submission of Fuel Consumption Data for Fuel Consumption Labelling, Consumer Protection Act, C.Q.L.R. c. P-40.1, Richard v. Time Inc., 2012 SCC 8

Short Civil Decisions

Assayag-Shneer v. Shneer, 2023 ONCA 127

Keywords: Family Law, Divorce, Spousal Support, Civil Procedure, Expert Evidence, Costs, Evidence Act, R.S.O. 1990, c. E.23, Rules of Civil Procedure, Tariff A, item 26, Assayag-Shneer v. Shneer, 2023 ONCA 14

CIVIL DECISIONS

Haudenosaunee Development Institute v. Metrolinx , 2023 ONCA 122

[Sossin J.A. (Motion Judge)]

Counsel:

T. Gilbert, Z. Cynader, C. Carruthers, T. Dumigan, J. MacDonald and J. Martin for the moving party

S. Batner, B. Gray, S. Rogers, B. Greenaway and C. Puskas for the responding party

Keywords: Aboriginal Law, Real Property, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(a), Haudenosaunee Development Institute v. Metrolinx, 2023 ONSC 1170, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 446, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.), Denison Mines Limited v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

Facts:

The moving party, Haudenosaunee Development Institute ("HDI"), was denied leave to appeal an order of the Divisional Court dated February 10, 2023, which denied an injunction against the responding party, Metrolinx, to prevent the removal of 11 trees on Metrolinx's property located next to Osgoode Hall.

HDI then sought to extend the interim relief ordered by the Divisional Court on February 17, 2023, which was ordered pending the outcome of the Divisional Court leave to appeal motion. HDI sought to continue the interim injunction preventing Metrolinx from taking any further actions on the Osgoode Hall site until the Court disposed of its motion for leave to appeal from the order of the Divisional Court denying leave.

Metrolinx opposed the motion for a further interim injunction, arguing that HDI satisfied none of the criteria for an injunction, has not met the requirement of providing an undertaking for damages, and that there is no serious issue to be tried as appeals to the Court of Appeal are not available from the denial of a leave to appeal from the Divisional Court.

Issues:

(1) Did HDI meet the test for an interlocutory injunction?

Holding:

Motion dismissed.

Reasoning:

(1) No.
The Court applied the test for an interlocutory injunction as set out in RJR MacDonald Inc. v...