Court Of Appeal Summaries (April 10 ' 14, 2023)

• Published date: 01 May 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Unfair/ Wrongful Dismissal, Redundancy/Layoff, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 10, 2023.

100 Bloor Street West Corporation v. Barry's BootCamp Canada Inc. is a commercial lease interpretation case regarding the landlord's allocation of property taxes between the various leased units in the building.

Baffindland Iron Mines LP v. Tower-EBC G.P./S.E.N.C. is an arbitration case dealing with whether there were appeal rights.

Pham v. Qualified Metal Fabricators Ltd. is a wrongful dismissal case arising out of a layoff during the pandemic. The appeal from a summary judgment was allowed and the matter was remitted back to the Superior Court for a trial of the issues.

Quantum Dealer Financial Corporation v. Toronto Fine cars and Leasing Inc. is a debtor-creditor case. The respondent finances used car fleets. The appellants were the used car dealership borrower, and its principals. The cars were sold in a fire sale and the proceeds were not remitted to the lender, in breach of trust. The respondent obtained summary judgment against the borrower and its principals for, among other things, knowing assistance of breach of fiduciary duty and knowing receipt of trust property. The Court allowed the appeal, holding that a rejection of the appellants' evidence was not enough to support a finding of knowing assistance and knowing receipt. There had to be some positive evidence to support such findings.

Wishing everyone an enjoyable weekend and a Happy Easter to those of the orthodox faith.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C. , 2023 ONCA 245

Keywords: Contracts, Interpretation, Presumption of Consistent Expression, Construction, Arbitration Agreements, Appeal Rights, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(1) and ss. 45(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Arbitration of the International Chamber of Commerce, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.), Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Healy v. Gregory (2009), 75 C.C.P.B. 178 (Ont. S.C.), Labourers' International Union of North America, Local 183 v. Carpenters and Allied Workers Local 27 (1997), 34 O.R. (3d) 472 (C.A.), Interactive E-Solutions JLT & Anor v. O3b Africa Ltd., [2018] EWCA Civ 62, Yorkville North Development Ltd. v. North York (City) (1988), 64 O.R. (2d) 225 (C.A.), Fuller v. Aphria Inc., 2020 ONCA 403, Kim Lewison, The Interpretation of Contracts, 4th ed. (London, U.K.: Smith & Maxwell, 2007), J. Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed. (Huntington, N.Y.: JurisNet, 2017)

Pham v. Qualified Metal Fabricators Ltd., 2023 ONCA 255

Keywords: Contracts, Employment, Wrongful Dismissal, Constructive Dismissal, Layoffs, Implied Terms, Condonation, Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Employment Standards Act, 2000, S.O. 2000, c. 41, ss. 5(2), 8(1), 56, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Rules of Civil Procedure, r. 20.04(2), Manthadi v. ASCO Manufacturing, 2020 ONCA 485, Singh v. Concept Plastics Limited, 2016 ONCA 815, Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831, Stolze v. Addario (1997), 36 O.R. (3d) 323 (C.A.), Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, Michalski v. Cima Canada Inc., 2016 ONSC 1925, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Miranda v. Respiratory Services Limited, 2022 ONSC 6094, Bevilacqua v. Gracious Living Corporation, 2016 ONSC 4127, Kurt v. Idera Inc., 2016 ONSC 3799, Hefkey v. Blanchfield, 2020 ONSC 2438, Martellacci v. CFC/INX Ltd. (1997), 10 C.P.C. (4th) 143, Greaves v. Ontario Municipal Employees Retirement Board (1995), 129 D.L.R. (4th) 347, McGuinty v. 1845035 Ontario Inc., 2020 ONCA 816, Belton v. Liberty Insurance Co. of Canada (2004), 72 O.R. (3d) 81, Andrews v. Allnorth Consultants Ltd., 2021 BCSC 1246, Muntean v. Enablence Canada Inc., 2016 ONSC 923

100 Bloor Street West Corporation v. Barry's BootCamp Canada Inc., 2023 ONCA 247

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Civil Procedure, Appeals, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

Quantum Dealer Financial Corporation v. Toronto Fine Cars and Leasing Inc., 2023 ONCA 256

Keywords: Torts, Fraud, Breach of Fiduciary Duty, Knowing Assistance of Breach of Fiduciary Duty, Knowing Receipt of Trust Property, Civil Procedure, Summary Judgment,Evidence, Credibility, Inferences, Rules of Civil Procedure, r. 20.04(2.1), Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia, 2020 ONCA 412, Air Canada v. M & L Travel Ltd., [1993] 3 S.C.R. 787, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805, Waxman v. Waxman, (2004) 186 O.A.C. 201 (C.A.), Haynes v. Haynes, 2017 BCCA 131, Malak v. Hanna, 2019 BCCA 106, Eileen Gillese, The Law of Trusts, 3rd ed. (Toronto: Irwin Law, 2014)

Short Civil Decisions

Tewari v. Singh, 2023 ONCA 249

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Default Judgments, Rules of Civil Procedure, r. 59.06(1)

NDrive, Navigation Systems S.A. v. Zhou, 2023 ONCA 239

Keywords: Civil Procedure, Interlocutory Orders, Mareva Injunctions, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19, NDrive, Navigation Systems v. Zhou et al., 2021 ONSC 7366, NDrive, Navigation Systems v. Zhou, 2021 ONSC 7772, NDrive, Navigation Systems S.A. v. Zhou, 2022 ONCA 602, Hendrickson [Hendrickson v. KalIio, [1932] O.R. 675 (C.A.), Drywall Accoustic v. SNC Lavalin, 2020 ONCA 375, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd., 1998 CarswellOnt 4534 (C.A.)

Yan v. Cortes, 2023 ONCA 248

Keywords: Torts, Defamation, Constructive Discrimination, Harassment, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action

Goberdhan v. Knights of Columbus, 2023 ONCA 269

Keywords: Civil Procedure, Appeals, Reply Factums, Arbitration, Arbitration Act, 1991, S.O. 1991, c. 17, s 7(6), Rules of Civil Procedure, r. 61.03.1(11), Criminal Appeal Rules, r. 40(8), Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4

CIVIL DECISIONS

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245

[Zarnett, Thorburn and Copeland JJ.A.]

Counsel:

K. Thomson, S. Campbell, A. Hassan, M. Littlejohn, A. Alexander and T. May, for the appellants

I. Nishisato, H. Meighen, E. Peters and S. Gagné, for the respondent

Keywords: Contracts, Interpretation, Presumption of Consistent Expression, Construction, Arbitration Agreements, Appeal Rights, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(1) and ss. 45(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Arbitration of the International Chamber of Commerce, Hillmond Investments Ltd. v. Canadian Imperial Bank of Commerce (1996), 29 O.R. (3d) 612 (C.A.), Denison Mines Ltd. v. Ontario Hydro (2001), 56 O.R. (3d) 181 (C.A.), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Healy v. Gregory (2009), 75 C.C.P.B. 178 (Ont. S.C.), Labourers' International Union of North America, Local 183 v. Carpenters and Allied Workers Local 27 (1997), 34 O.R. (3d) 472 (C.A.), Interactive E-Solutions JLT & Anor v. O3b Africa Ltd., [2018] EWCA Civ 62, Yorkville North Development Ltd. v. North York (City) (1988), 64 O.R. (2d) 225 (C.A.), Fuller v. Aphria Inc., 2020 ONCA 403, Kim Lewison, The Interpretation of Contracts, 4th ed. (London, U.K.: Smith & Maxwell, 2007), J. Brian Casey, Arbitration Law of Canada: Practice and Procedure, 3rd ed. (Huntington, N.Y.: JurisNet, 2017)

facts:

BIM and TEBC entered into two virtually identical contracts in 2017 that provided for TEBC to perform earthworks for BIM's construction of a railway to transport ore from its mine on Baffin Island, Nunavut, to a nearby port.

The contracts were primarily Fédération Internationale des Ingénieurs-Conseils ("FIDIC") standard form construction contracts which the parties modified in respect of certain matters. The dispute resolution provisions of the contracts, which included provisions that constituted their arbitration agreement, were not modified from the FIDIC form.

The dispute resolution provisions of the contracts provided three pathways to resolution of a dispute. Either party was entitled to refer a dispute to a Dispute Adjudication Board...