Court Of Appeal Summaries (March 13 ' 17, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Finance and Banking, Insurance, Litigation, Mediation & Arbitration, Tax, Family and Matrimonial, Charges, Mortgages, Indemnities, Family Law, Insurance Laws and Products, Court Procedure, Personal Injury, Property Taxes, Civil Law
• Author: Mr John Polyzogopoulos
• Published date: 28 March 2023

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of March 13, 2023.

In Poorkid Investments Inc. v. Ontario (Solicitor General), the Court considered the constitutional validity of s. 17 of the Crown Liability and Proceedings Act, 2019 ("CLPA"), which states that proceedings brought against the Crown that include a claim for misfeasance in public office or bad faith in the exercise of public duties or functions are deemed to be stayed, and leave must be obtained before proceeding with such claims. The Court found that the application judge erred in holding that s. 17 of the CLPA was unconstitutional because it created a barrier to accessing the superior courts. The Court concluded that s. 17 of the CLPA was a valid exercise of provincial lawmaking authority under s. 92(14) of the Constitution Act, 1867, and does not violate s. 96. Although s. 17 of the CLPA made it more difficult to bring proceedings against the Crown, the leave requirement and associated rules established by s. 17 did not affect the core jurisdiction of superior courts, much less infringe it.

In Ontario v. St. Paul Fire and Marine Insurance Company, the appellant, Ontario, appealed an application judge's decision pertaining to the respondent's refusal to defend claims against Ontario arising out of a proposed class action concerning persons who were arrested and detained for more than 24 hours prior to receiving a bail hearing. Ontario incurred costs of approximately $300,000 in its defence of the proposed class action before certification was denied. Ontario had two insurance policies with the respondent insurer over two relevant periods of time. The Court upheld the application judge's finding that the damages claimed were not covered under the first policy, as they were not unexpected and arose out of intentional conduct by the insured. The Court found that the application judge erred in finding that the damages were not covered by the second policy, but in any event dismissed the appeal because the second policy only insured damages above $5,000,000.

In 778938 Ontario Limited v. EllisDon Corporation, the Court considered whether Ontario was the proper forum for the resolution of a claim that had been first brought in Nova Scotia. The Court ultimately found, under the doctrine of forum non conveniens, that Nova Scotia was the clearly more appropriate forum due to the risk of possible inconsistent findings on the same issues. The Court stayed the Ontario action until a determination was made in the Nova Scotia action.

Other topics covered this week included a family law dispute regarding equalization of net family property, the unlawful taking of possession of a mortgaged property by a mortgagee, and a child abduction case where the child was ordered to return to New York.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172

Keywords: Torts, Crown Liability, Misfeasance in Public Office, Nonfeasance, Negligence, Nuisance, Constitutional Law, Judiciary, Rule of Law, Civil Procedure, Leave to Commence Proceeding Against Crown, Constitution Act, 1867 ss. 17, 92.(14) and 96, Crown Liability and Proceedings Act, 2019, S.O. 2019 c. 7, Sch. 17, s.17(2), Comprehensive Ontario Police Services Act, 2019, S.O. 2019, c. 1, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27., ss.17(2)-(7), Courts of Justice Act, R.S.O. 1990, c. C.43, s.140, Rules of Civil Procedure, rr. 2.1.01 and 2.1.02, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, Reference re Residential Tenancies Act, [1981] 1 S.C.R. 714, at p. 728, Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186, R. v. J.M., 2021 ONCA 150, Re Manitoba Language Rights, [1985] 1 S.C.R. 721, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, The Inherent Jurisdiction of the Court (1970), 23 Curr. Legal Probs. 23, Kristen Rundle, Revisiting the Rule of Law (New York: Cambridge University Press, 2022), Frederick Schauer, Lon Fuller and the Rule of Law, (2020) University of Virginia School of Law Public Law and Legal Theory Paper Series 2020-46, John Tasioulas, The Rule of Law in Tasioulas, ed., The Cambridge Companion to the Philosophy of Law (Cambridge: Cambridge University Press, 2019), Brian Z. Tamanaha, The History and Elements of the Rule of Law (2012) Sing. J.L.S. 232, The Morality of Law, rev'd edn. (New Haven: Yale University Press, 1969), Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), Jeremy Waldron, The Rule of Law as an Essentially Contested Concept (2021) NYU School of Law Public Law and Legal Theory Research Paper Series, Working Paper No. 21-15

Ontario v. St. Paul Fire and Marine Insurance Company, 2023 ONCA 173

Keywords: Torts, Crown Liability, Charter Breaches, Bail, Contracts, Insurance, Interpretation, Coverage, Commercial General Liability Insurance, Duty to Defend, Pleadings Rule, Extrinsic Evidence, Nullification Doctrine, Fortuity Principle, Civil Procedure, Class Proceedings, Canadian Charter of Rights and Freedoms, ss. 11(e), Criminal Code, R.S.C. 1985, c. C-46, s. 503(1), Monenco Ltd. v Commonwealth Insurance Co., 2001 SCC 49, Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, Tedford v. TD Insurance Meloche Monnex, 2012 ONCA 429, Nichols v. American Home Assurance Co., [1990] 1 S.C.R. 801, Panasonic Eco Solutions Canada Inc. v. XL Speciality Insurance Company, 2021 ONCA 612, IT Haven Inc. v. Certain Underwriters at Lloyd's, London, 2022 ONCA 71, Cabell v. The Personal Insurance Company, 2011 ONCA 105, (2011), Consolidated-Bathurst v. Mutual Boiler, [1980] 1 S.C.R. 888, Liberty Mutual Insurance Co. v. Hollinger Inc., 236 D.L.R. (4th) 635 (Ont. C.A.), Ontario Society for the Prevention of Cruelty to Animals v. Sovereign General Insurance Company, 2015 ONCA 702, Craig Brown et al., Insurance Law in Canada, loose-leaf (Toronto: Thomson Reuters Canada Ltd., 2002), Gordon G. Hilliker, Liability Insurance Law in Canada, 7th ed. (Toronto: Butterworths, 2020)

Dieffenbacher v. Dieffenbacher IV, 2023 ONCA 189

Keywords: Family Law, Parenting, Relocation, Child Abduction, Best Interests of the Child, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, r. 63.02, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Ellis v. Wentzell-Ellis, 2010 ONCA 347, Zafar v. Saiyid, 2017 ONCA 919, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12, International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.), Longley v. Canada (AG), 2007 ONCA 149, J.P.B. v. C.B., 2016 ONCA 996, Chafin v. Chafin (2012), 133 S.Ct. 1017, Office of the Children's Lawyer v. Balev, 2018 SCC 16, RJR-MacDonald Inc. v. Canada (AG), [1994] 1 SCR 311

Cronier v. Cusack, 2023 ONCA 178

Keywords: Family Law, Equalization of Net Family Property, Civil Procedure, Financial Disclosure, Evidence, Admissibility, Privilege, Adverse Inferences, Family Law Rules, O.Reg., 114/99, rr. 2(2)-(4), Lesko v. Lesko, 2021 ONCA 369, Hickey v. Hickey, [1999] 2 S.C.R. 518, Sagl v. Sagl, 31 R.F.L. (4th) 405 (Ont. S.C.), Qaraan v. Qaraan, 2012 ONSC 6017, Cong v. Cong, 2007 CanLII 7994 (Ont. S.C.), Colucci v. Colucci, 2021 SCC 24

778938 Ontario Limited v. EllisDon Corporation, 2023 ONCA 182

Keywords: Contracts, Construction, Civil Procedure, Conflict of Laws, Jurisdiction Simplicitor, Real and Substantial Connection, Forum Non Conveniens, Appeals, Standard of Review, Lack of Reasons for Decision, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Earl v. McAllister, 2021 ONSC 4050 (Div. Ct.), Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 862

Zapfe Holdings Inc. v. 1923159 Ontario Inc., 2023 ONCA 190

Keywords: Contracts, Real Property, Mortgages, Enforcement, Possession, Power of Sale, Hume v. 11534599 Canada Corp., 2022 ONCA 575

Short Civil Decisions

East Elgin Concrete Forming Limited v. 9001522 Canada Limited, 2023 ONCA 175

Keywords: Civil Procedure, Appeals, Jurisdiction, Construction Act, R.S.O. 1990, c. C.30, s. 71(1)

Gallen v. Sutherland, 2023 ONCA 170

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Rules of Civil Procedure, rr. 37.14, 59.06, Elguindy v. Elguindy, 2021 ONCA 708

Forest Hill Fine Homes Inc. v. Heartland Farm Mutual Insurance Co., 2023 ONCA 171

Keywords: Torts, Negligence, Contracts, Insurance, Interpretation, Coverage, Duty to Defend, Property Damage, Civil Procedure, Full Indemnity Costs, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Godonoaga v. Khatambakhsh (2000), 50 O.R. (3d) 417 (C.A.)

Palmer v. Ioannidis, 2023 ONCA 179

Keywords: Real Property, Gifts, Possessory Title, Adverse Possession, Torts, Trespass

Re/Max Realty Specialists Inc. v. 2452303 Ontario Inc., 2023 ONCA 186

Keywords: [KEYWORDS]

Chahal v. Caledon (Town), 2023 ONCA 188

Keywords: Real Property, Municipal Law, Land Use Planning, Legal Non-conforming Use, Evidence, Admissibility, Hearsay, Planning Act, R.S.O. 1990, c. P.13, s. 34(9)

Bowen v. JC Clark Ltd., 2023 ONCA 181

Keywords: Civil Procedure, Costs, Rules of Civil Procedure, rr. 37.14, 59.06, 61.16(6.1), Trillium Motor...