Court Of Appeal Summaries (May 1 ' 5, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Insurance, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Contracts and Commercial Law, Mobile & Cable Communications, Insurance Laws and Products, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution, Professional Negligence, Civil Law
• Author: Mr John Polyzogopoulos and Ines Ferreira
• Published date: 19 May 2023

Good afternoon.
Following are this week's summaries of the Court of Appeal for Ontario for the week of May 1, 2023.

In Ontario (Auditor General) v. Laurentian University, the Auditor General brought an application for a declaration that s. 10 of the Auditor General Act gave it the right to certain solicitor-client privileged documents belonging to Laurentian University in the course of an audit of the university. The Court reaffirmed the principle that there must be a clear and unambiguous legislative intention to abrogate privilege, which was not present in this case. Accordingly, the Auditor General was not entitled to the privileged information.

In Ferraro v. Neilas, the appellants appealed the summary judgment granted against them on guarantees they gave in respect of a 2012 syndicated first mortgage financing of a small residential condominium project. The motion judge interpreted the related agreements so as to extend the guarantee of the mortgage to a guarantee of the investors' investment in that mortgage. A majority of the Court agreed. However, Hoy J.A. dissented. She was of the view that it was not the Court's job to rescue the investors from their decision to participate in risky mortgage investments which they knew involved related parties without the independent legal advice they were strongly advised to obtain.

In Fareau v. Bell Canada, the appellants claimed that the respondents charged unreasonable and unconscionable telephone rates for sending and receiving long-distance calls from provincial correctional facilities. The motion judge granted permanent stays of most of the causes of action on the basis that the Canadian Radio-television and Telecommunications Commission had jurisdiction. However, it remained to be seen whether the CRTC would assert jurisdiction. Accordingly, the Court set aside the permanent stay and replaced it with a temporary one, pending the CRTC's decision.

In Petrochemical Commercial Company International Ltd v. Nexus Management Group SDN BHD, the appellants alleged that a settlement they entered into with Iranian corporations was breached because criminal charges outstanding against them in Iran had not been withdrawn. The Court agreed with the motion judge that there was no such breach, as the parties understood that the corporations did not control the Iranian prosecutor's office.

Doria v. Warner Bros. Entertainment Canada Inc. deals with section 139 of the Courts of Justice Act, which reads as follows:

Where two or more persons are jointly liable in respect of the same cause of action, a judgment against or release of one of them does not preclude judgment against any other in the same or a separate proceeding.

The appellant in that case sued a movie production company by way of arbitration for damage done to his home during a film shoot. He was not satisfied with the amount awarded to him (which he recovered). He then sued the movie studio, Warner Bros, for the same heads of damages he had already been awarded and collected. The motion judge dismissed the claim as an abuse of process. The Court agreed with the motion judge. Section 139 does not preclude the dismissal of a subsequent claim as an abuse of process. The appellant's entire damages claim had been adjudicated in the arbitration and he had been paid those damages.

In Leroux v. Ontario, the Court overturned a Divisional Court decision that set aside the decision of a motion judge who certified a class action under s. 5(1) of the Class Proceedings Act. The proposed class action pertained to adults with developmental disabilities who, like the appellant, were assessed and approved to receive three specific types of supports and services, but did not receive them because of institutional delays. They sued the provincial government for, among other things, operational negligence in administering the program and for breach of section 7 of the Charter. The Court agreed with the motion judge and held that that the Divisional Court erred in finding that it was plain and obvious that the proposed class proceeding would not succeed.

Other topics covered included breach of fiduciary duty in a partnership dispute, a dispute about the repayment of loans to investors who had invested in tax schemes, arbitration clauses that failed for want of consideration in the employment context and mortgage enforcement.

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

Ontario (Auditor General) v. Laurentian University , 2023 ONCA 299

Keywords: Public Law, Universities, Privilege, Statutory Interpretation, Auditor General Act, R.S.O. 1990, c. A.35, ss. 10, 27.1, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Law Society Act, R.S.O. 1990, c. L.8, s. 49.8(1), Health Insurance Act, R.S.O. 1990, c. H. 6, s. 43.1(6), Archives and Recordkeeping Act, 2006, S.O. 2006, c. 34, Sched. A, s. 8(6), Auditor General Act, S.N.S. 2010, c. 33, s. 14(1), Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52

Hayer v. Bertasiene , 2023 ONCA 302

Keywords: Contracts, Real Property, Mortgages, Fraud, Usury, Civil Procedure, Amending Pleadings, Appeals, New Issues on Appeal, Criminal Code R.S.C., 1985, c. C-46, s. 347

Ferraro v. Neilas , 2023 ONCA 297

Keywords: Real Estate, Syndicated Mortgage, Contracts, Interpretation, Trust Law, Summary Judgment, Pre- and Post Judgment Interest, Contra Proferentum Rule, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Mortgage Brokerages, Lenders and Administrators Act, 2006, S.O. 2006, c. 29, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Orwinski v. Hi-Rise Capital, 2019 ONSC 3975, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Fuller v. Aphria Inc., 2020 ONCA 403, Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Neely v. MacDonald, 2014 ONCA 874, Cathcart Inspection Services Ltd. v. Purolator Courier Ltd., (1981), 34 O.R. (2d) 187 (S.C.), aff'd 39 O.R. (2d) 656 (C.A.), Toronto (City) v. Toronto Railway, [1907] A.C. 315 (P.C.); Solway v. Lloyd's Underwriters (2006), 80 O.R. (3d) 401 (C.A.), Spina v. Shoppers Drug Mart Inc., 2012 ONSC 5563, Pass Creek Enterprises Ltd. v. Kootenay Custom Log Sort Ltd., 2003 BCCA 580, Adamastos Shipping Co. v. Anglo-Saxon Petroleum Co., [1958] 1 All E.R. 725 (H.L.), BG Checo International Ltd. v. British Columbia Hydro & Power Authority, [1993] 1 S.C.R. 12, Peter Cotton-O'Brien, "A Trustee's Fiduciary Duty to Disclose the Existence of a Trust" (2018) 37:3 Est. Tr. & Pensions J. 251, Geoff R. Hall, Canadian Contractual Interpretation Law, 4th ed. (Toronto: LexisNexis, 2020), Chitty on Contracts, 34th ed., vol. 1 (London: Sweet & Maxwell, 2021)

Fareau v. Bell Canada , 2023 ONCA 303

Keywords: Constitutional Law, Division of Powers, Taxation, Ultra Vires, Pith and Substance Doctrine, Consumer Protection, Telecommunications, Administrative Law, Contracts, Unconscionability, Crown Liability, Breach of Fiduciary Duty, Unjust Enrichment, Civil Procedure, Class Proceedings, Certification, Arbitration, Injunctions, Telecommunications Act, S.C. 1993, c. 38, ss. 27(1)-(3), 32(g), 34(1)-(3), Constitution Act, 1867, Class Proceedings Act, 1992, S.O. 1992, c. 6, s.5(1)(d), Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, Penney v. Bell Canada, 2010 ONSC 2801, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 620 Connaught Ltd. v. Canada (Attorney General), 2008 SCC 7, Toronto Distillery Company Ltd. v. Ontario (Alcohol and Gaming Commission): 2016 ONCA 960, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Unfiltered Brewing Inc. v. Nova Scotia Liquor Corporation, 2019 NSCA 10, Steam Whistle Brewing Inc. v. Alberta Gaming and Liquor Commission, 2018 ABQB 476, QCTV Ltd. v. Edmonton (City) (1983), 48 A.R. 255 (Q.B.), Bell Canada c. Aka-Trudel, 2018 QCCA 829, Morin c. Bell Canada, 2012 QCCS 4191, Brown v. Hanley, 2019 ONCA 395, Mahar v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690 (Ont. Gen. Div.), Sprint Canada Inc. v. Bell Canada (1999), 86 C.P.R. (3d) 285 (Ont. C.A.), Bazos v. Bell Media Inc., 2018 ONSC 6146, Telecom Decision CRTC 2004-8, Telecom Decision CRTC 2002-37, Telecom Decision CRTC 1997-19, Bell's General Tariff Item 292 (Inmate Service)

Petrochemical Commercial Company International Ltd v. Nexus Management Group SDN BHD , 2023 ONCA 308

Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Doria v. Warner Bros. Entertainment Canada Inc., 2023 ONCA 321

Keywords: Contracts, Joint Liability, Civil Procedure, Striking Pleadings, Abuse of Process, Multiplicity of Proceedings, Arbitration, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 138, 139(1), Rules of Civil Procedure, r. 21.01(3)(d), Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc., 2022 ONCA 718, Winter v. Sherman Estate, 2018 ONCA 703, Telus Communications Inc. v. Wellman, 2019 SCC 19, The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Feinstein v. Freedman, 2014 ONCA 205

Leroux v. Ontario, 2023 ONCA 314

Keywords: Crown Liability, Negligence, Core Policy Decisions, Operational Negligence, Anns/Cooper Test, Proximity, Reasonable Foreseeability, Charter Claims, Right to Life, Liberty and Security of the Person, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Preferable Procedure, Canadian Charter of...