Court Of Appeal Summaries (February 27, 2023 ' March 3, 2023)

• Published date: 10 March 2023
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Court Procedure
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good evening.

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 27, 2023. It was a busy week at the Ontario Court of Appeal with many lengthy decisions released.

In Ontario (Attorney General) v. Trinity Bible Chapel, the appellants were charged with contravening several of Ontario's COVID-19 regulations imposing capacity restrictions on indoor and outdoor religious gatherings in late 2020 and early 2021. The appellants brought motions to set aside court orders made against them on the basis that the authorizing regulations infringed s. 2 of the Canadian Charter of Rights and Freedoms. The motion judge found the challenged regulations infringed the appellants' right to freedom of religion under s. 2(a) of the Charter but were justified as a reasonable limit on that right in a free and democratic society. The appellants challenged the motion judge's treatment of the expert evidence, her decision not to rely on "hindsight" evidence in evaluating the regulations, her decision not to consider the other alleged Charter breaches, and her conclusion that the regulations were justified under s. 1. The Court dismissed the appeal and found the motion judge was entitled to rely on all, part, or none of the expert evidence. The Court also saw no error in the motion judge's overall conclusion that the challenged regulations were justified under s. 1 of the Charter.

In Park Lawn Corporation v. Kahu Capital Partners Ltd. the Court considered an appeal from a motion judge's decision refusing to strike the respondent's counterclaim for defamation in an Anti-SLAPP motion. The Court agreed with the motion judge that the public comments made about the respondent harmed the respondent's reputation. Further, the Court found that the motion judge had correctly weighed the public interest of the comments against the corresponding harm that they caused. Finally, the Court agreed that the anti-SLAPP motion was inspired by strategic and tactical decisions and accordingly refused the appeal.

The Court in Sinclair v. Amex Canada Inc. considered whether the motion judge had erred in applying the fourth factor of the Van Breda test of whether a contract connected with the dispute was made in Ontario. The majority of the Court found that the motion judge had erred by failing to consider each objecting defendants' position in disputing jurisdiction. In other words, the motion judge erred in accepting that because one defendant did not object to the jurisdiction of Ontario, all defendants were subject to the same jurisdiction. The Court further found that the motion judge had erred in failing to find that, in the event there was a presumptive connecting factor, the appellants had failed to rebut it. Young J.A. provided a concurring decision. Young J.A. disagreed with the majority that the Ontario contract could not connect all of the appellants to Ontario. However, Young J.A. agreed that the motion judge had erred in failing to find that the presumptive connection was rebutted by the appellants.

In Burr v. Tecumseh Products of Canada Limited, the respondents started an action against Venmar and Fasco for a defective ventilator that overheated, exploded and caught fire resulting in serious damage. The ventilator was manufactured and designed by Venmar and the motor was designed and manufactured by Fasco. The trial judge had found Venmar liable for negligent design and that Fasco was entitled to be indemnified by Venmar pursuant to their contract. The Court found that the trial judge did not make any palpable or overriding error and committed no legal error in his conclusions that Venmar was liable for negligent design despite not finding Venmar not liable for its duty to warn the respondents. The Court also held that the trial judge reasonably concluded that the indemnity provision in the contract was operative, such that if Fasco had been liable to the respondents, Venmar was contractually bound to indemnify Fasco for any damages payable to the respondents. However, the Court found that the trial judge failed to take into account the indemnity provisions in the contract when exercising his discretion on costs and remitted the issue of costs payable to Fasco to the trial judge.

Other topics this week include a request for leave to appeal from a motion judge's order made under Companies' Creditors Arrangement Act proceedings, an appeal from a motion judge's decision refusing to strike a counterclaim for defamation in an Anti-SLAPP action, a motion to the Court alleging reasonable apprehension of institutional bias, seeking to disqualify the panel of the Court from hearing any matter related to the ongoing appeals related to the trees at Osgoode Hall, among others.

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

Sinclair v. Amex Canada Inc., 2023 ONCA 142

Keywords: Tort, Negligence, Personal Injury, Liability, Contract, Jurisdiction, Jurisdiction simplicitor, Presumptive Connecting Factors, Real and Substantial Connection, forum non conveniens, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 11.25 (3)(b), Alberta Rules of Court, Alta Reg. 124/2010, Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, Jean-Gabriel Castel & Janet Walker, Castel & Walker: Canadian Conflict of Laws, loose-leaf (2022-Rel. 96), 6th ed. (Markham, ON: LexisNexis Canada, 2005), Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, Lapointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30, Bazley v. Curry, [1999] 2 S.C.R. 534, Kyko Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736, Vahle v. Global Work & Travel Co. Inc., 2020 ONCA 224, Dilkas v. Red Seal Tours Inc. (Sunwing Vacations), 2010 ONCA 634, Di Gregorio v. Sunwing Vacations Inc., 2018 ONCA 655, R. v. Mian, 2014 SCC 54, Quan v. Cusson, 2009 SCC 62, Hydro Aluminium Rolled Products GmbH v. MFC Bancorp Ltd., 2021 BCCA 182, Sakab Saudi Holding Company v. Jabri, 2022 ONCA 496, Forsythe v. Westfall, 2015 ONCA 810, Tamminga v. Tamminga, 2014 ONCA 478, Gajraj v. DeBernardo (2002), 60 O.R. (3d) 68 (C.A.), Doyle v. Zochem Inc., 2017 ONCA 130, Hague v. Hague, 2022 BCCA 325, R. v. G.F., 2021 SCC 20, Dreesen v. Dreesen, 2021 ONCA 557, Kringhaug v. Men, 2022 BCCA 186, Henderson v. The Manitoba Public Insurance Corporation, 2022 MBCA 57, Zhao v. Fang, 2022 BCCA 227, Flying Frog Trading Co., Ltd. v. Amer Sports OYJ, 2018 BCCA 384, Saskatchewan Power Corporation v Mitsubishi Power Canada Ltd., 2022 SKQB 147, Toews v. Grand Palladium Vallarta Resort & Spa, 2016 ABCA 408, Mantini v. Smith Lyons LLP (2003), 64 O.R. (3d) 505 (C.A.), Lawrence v. Toronto Humane Society (2006), 271 D.L.R. (4th) 329 (Ont. C.A.), Kitchener-Waterloo Real Estate Board Inc. v. Ontario Regional Assessment Commissioner, Region No. 21 (1986), 56 O.R. (2d) 94 (H.C.), Toews v. First Choice Canada Inc (Signature Vacations), 2016 ABQB 130, Slattery (Trustee Of) v. Slattery, [1993] 3 S.C.R. 430, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Colavecchia v. The Berkeley Hotel, 2012 ONSC 4747

Johwel Investments Inc. v. Welton, 2023 ONCA 132

Keywords: Real Property, Property Rights and Interests, Trust, Bare Trustee, Judgment Creditor, Trident Holdings Ltd. v. Danand Investments Ltd. (1988), 64 O.R. (2d) 65 (C.A.), John Sopinka, Mark A Gelowitz and W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed. (LexisNexis, 2018, Toronto), at §1.11

Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 144

Keywords: Property Rights, Expropriation, Infrastructure, Municipal Law, Heritage Properties, Osgoode Hall, Civil Procedure, Interim and Interlocutory Injunctions, Reasonable Apprehension of 'Institutional Bias', Jurisdiction, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 6(1)(b), s. 7(5), s. 19(1)(b), s. 101, Law Society of Ontario v. Metrolinx, 2023 ONSC 1169, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, Paulpillai Estate v. Yusuf, 2020 ONCA 655, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Hendrickson v. Kallio, [1932] O.R. 675, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Prescott & Russell (United Counties) v. David S. Laflamme Construction Inc., 2018 ONCA 495, Soberman Isenbaum Colomby Tessis Inc. v. St. James Securities Inc. (2002), 60 O.R. (3d) 155 (C.A.), Ontario v. Shehrazad Non-Profit Holding Inc., 2007 ONCA 267, Amphenol Canada Corp. v. Sundaram, 2019 ONCA 932, Ontario Medical Association et al. v. Miller (1976), 14 O.R. (2d) 468 (C.A.), Deltro Group Ltd. v. Potentia Renewables Inc., 2017 ONCA 784

Libfeld v. Libfeld , 2023 ONCA 128

Keywords: Business Law, Partnerships, Fiduciary Duty, Oppression, Financing of Transactions, Vendor-Takeback Mortgages, Compliance with Orders, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52

Burr v. Tecumseh Products of Canada Limited, 2023 ONCA 135

Keywords: Tort, Negligence, Duty to Warn, Duty of Care, Contract, Product Liability, Indemnification, Costs, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rankin's Garage & Sales v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, Housen v. Nikolaisen, 2002 SCC 33, [2022] 2 S.C.R. 235, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] S.C.R. 303, Ford Motor Company of Canada, Ltd. v Ontario Municipal Employees, 2006 CanLII 7665 (Ont. C.A.), 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA...