Court Of Appeal Summaries (April 17, 2023 ' April 21, 2023)

• Published date: 05 May 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Litigation, Mediation & Arbitration, Immigration, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Discrimination, Disability & Sexual Harassment, Family Law, Insurance Laws and Products, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, General Immigration, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Following are our summaries of the civil decisions of the Ontario Court of Appeal for the week of April 17, 2023.

In Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, the Superior Court stayed the action in favour of an arbitration clause contained in a draft, unsigned contract. The plaintiff sued, claiming a contract had been agreed to. It was arguable as to whether the contract contained an arbitration clause. That was enough for the Superior Court to stay the action in favour of arbitration. The Court of Appeal dismissed the appeal.

In Mahjoub v. Canada (Public Safety and Emergency Preparedness), an immigration/deportation case, the Court held that the Superior Court properly declined the applicant's habeas corpus application. This was because the applicant had an alternative route to pursue his remedies in the Federal Court under the Immigration and Refugee Protection Act that were at least as broad and advantageous as an application for habeas corpus to the Ontario Superior Court. The applicant has been found to be a threat to national security, and has been living in Canada in custody or under strict conditions and surveillance for 23 years. The Court stated that in national security cases, applications for habeas corpus in the Superior Court was generally unavailable. The evidentiary restrictions in such cases meant that certain evidence of a sensitive nature could only be heard by certain Federal Court judges, and could not be heard by a Superior Court judge. However, the Court did not foreclose the possibility of a party being entitled to bring a habeas corpus application in the national security context.

In Wong v Lui, the Court determined that the ultimate limitation period to sue a City for negligent inspection of a building was not tolled during the period of time when the plaintiff was a minor. The cause of action against the City accrued well before the plaintiff had purchased the property. At the time the cause of action accrued, the plaintiff had no claim, as she did not own the property. The fact that she was a minor during the course of the running of the 15-year limitation period from when the cause of action accrued therefore did not toll the 15-year limitation period for that length of time.

Other topics covered included bankruptcy and insolvency, breach of contract in the employment context involving the purchase of a book of business by a departing employee, the availability of long-term disability benefits for an employee who was on temporary medical leave at the time he suffered a serious car accident, a claim against an insurer and its employees for negligence in respect of the adjusting of a fire insurance claim.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Husky Food Importers & Distributors Ltd. v. JH Whittaker & Sons Limited, 2023 ONCA 260

Keywords: Contracts, Arbitration Agreements, Civil Procedure, Orders, Stay of Proceedings, Appeals, Jurisdiction, Final Order Interlocutory, International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5, s. 9, Arbitration Act, 1991, S.O. 1991, c. 17, ss. 7, 17(1), Smith Estate v. National Money Mart Company, 2008 ONCA 746, Griffin v. Dell Canada, 2010 ONCA 29, Huras v. Primerica Financial Services Ltd. (2000), 137 O.A.C. 79 (C.A.), Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, Rogers Wireless Inc. v. Muroff, 2007 SCC 35, Uber Technologies Inc. v. Heller, 2020 SCC 16, Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, Seidel v. TELUS Communications Inc., 2011 SCC 15, Haas v. Gunasekaram, 2016 ONCA 744, Sum Trade Corp. v. Agricom International Inc., 2018 BCCA 379, Gulf Canada Resources Ltd. v. Arochem International Ltd. (1992), 66 B.C.L.R. (2d) 113 (C.A.), Trade Finance Solutions Inc. v. Equinox Global Limited, 2018 ONCA 12, Dancap Productions Inc., v. Key Brand Entertainment, Inc., 2009 ONCA 135, Dalimpex Ltd. v. Janicki (2003), 64 O.R. (3d) 737 (C.A.)

Jewish Foundation of Greater Toronto (Re), 2023 ONCA 268

Keywords: Bankruptcy and Insolvency, Charities, Donations, Acts of Bankruptcy, Failing to Meet Liabilities as they Become Due, Civil Procedure, Striking Pleadings, Determination of Issue Before Trial, Abuse of Process, No Reasonable Cause of Action, Costs, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Rules of Civil Procedure, r. 21, Frazer v. Haukioja, 2010 ONCA 249, Dallas/North Group Inc. (Re) (2001), 148 O.A.C. 288

Mahjoub v. Canada (Public Safety and Emergency Preparedness), 2023 ONCA 259

Keywords: Immigration Law, Refugees, Deportation, Human Rights, Constitutional Law, Habeas Corpus, Civil Procedure, Jurisdiction, Peiroo Exception, Canadian Charter of Rights and Freedoms, ss. 7, 9 and 12, Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 76, s. 78, s. 79, s. 81, s. 82(1), s. 82.1(1), s. 82(2), s. 82(4), s. 82(5), s. 82.3, s. 83(1)(b), s. 83(1)(c), s. 85.1(1), s. 85.1(2), s. 115(1), s. 115(2)(b), Federal Courts Act, R.S.C. 1985, c. F-7, s. 17(1), Charkaoui v. Canada, 2007 SCC 9, Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, Mahjoub (Re), 2013 FC 1092, Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R.(2d) 253 (C.A.), Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, May v. Ferndale Institution, 2005 SCC 82, Mission Institution v. Khela, 2014 SCC 24, R. v. Graham, 2011 ONCA 138, R. v. Sarson, [1996] 2 S.C.R. 223, R. v. Gamble, [1988] 2 S.C.R. 595, R. v. Bird, 2019 SCC 7, Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness), 2015 ONCA 700, R. v. Zundel, 2003 CanLII 23552 (Ont. S.C.), Mahjoub (Re), 2014 FC 720, Harkat v. Canada (Minister of Citizenship and Immigration), 2013 FC 795, Mahjoub (Re), 2011 FC 506, Canada (MCI) v. Mahjoub, 2012 FC 125, Mahjoub (Re), 2013 FC 10, Mahjoub (Re), 2013 FC 1257, Mahjoub (Re), 2014 FC 720, Mahjoub (Re), 2015 FC 1232, Mahjoub (Re), 2016 FC 808, Mahjoub (Re), 2017 FC 603, Mahjoub (Re), 2017 FC 334, Mahjoub (Re), 2013 FC 10

Lindsay v. Verge Insurance Brokers Ltd., 2023 ONCA 263

Keywords: Breach of Contract, Employment, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Corner Brook (City) v. Bailey, 2021 SCC 29, Cronos Group Inc. v. Assicurazioni Generali S.p.A, 2022 ONCA 525

Soave v. Stahle Construction Inc., 2023 ONCA 265

Keywords: Contracts, Interpretation, Standard of Review, Employment, Insurance, Coverage, Long-Term Disability, Civil Procedure, Documentary Discovery, Affidavits of Documents, Trial, Evidence, Admissibility, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Rules of Civil Procedure, rr. 30.08(1)(a), 53.08(1), 1162740 Ontario Limited v. Pingue, 2017 ONCA 583, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37

Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267

Keywords: Contracts, Insurance, Fire, Coverage, Torts, Negligence, Defamation, Inducing Breach of contract, Intentional Interference with Economic Relations, Breach of Duty of Good Faith and Fair Dealings, Liability of Employees, Vicarious Liability, Civil Procedure, Partial Summary Judgment, Striking Pleadings, No Reasonable Cause of Action, Insurance Act, R.S.O. 1990, c. I.8, s. 128, s. 148, Statutory Condition 6, Statutory Condition 11, Rules of Civil Procedure, rr. 5.03(1), 21.01(1)(b), Hryniak v. Mauldin, 2014 SCC 7, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Addison Chevrolet Buick GMC Ltd. v. General Motors of Canada Ltd., 2016 ONCA 324, Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118, Correia v. Canac Kitchens, 2008 ONCA 506, ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101 (C.A.), Sataur v. Starbucks Coffee Canada Inc., 2017 ONCA 1017, Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hill Inc., 2021 ONSC 1684, Aviva Insurance v. Cunningham et al., 2022 ONSC 6331, Desjardins General Insurance Group v. Campbell, 2022 ONCA 128, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Smith v. Co-operators General Insurance Co., 2002 SCC 30, Campbell v. Desjardins, 2020 ONSC 6630, aff'd in part, 2022 ONCA 128, Senator Real Estate v. Intact Insurance, 2021 ONSC 200, Blackwater v. Plint, 2005 SCC 58, Trillium Power Wind Corp. v. Ontario (Ministry of Natural Resources), 2013 ONCA 683

Wong v. Lui , 2023 ONCA 272

Keywords:

Torts, Negligence, Public Authorities, Negligent Inspection, Statutory Interpretation, Plain Meaning, Legislative Purpose, Civil Procedure, Limitation Periods, Ultimate Limitation Period, Capacity, Minors, Determination of Issue Before Trial, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 6, 7, 15(2), 15(4)(b), Limitations Act, R.S.O. 1980, c. 240, s. 47, Building Code, O. Reg. 332/12, Statute of Merton, 1235, 20 Hen. 3, c.1, c.8, Statute of Limitations, 1540, 32 Hen. 8, c.2, Statute of Limitations, 1623, 21 Jac. 1, c. 16, Rules of Civil Procedure, rr. 1.03, 7.01(1), 21.01(1)(a), York Condominium Corporation No. 382 v. Jay-M Holdings Limited, 2007 ONCA 49, Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Deaville v. Boegeman (1984), 14 D.L.R. (4th) 81 (Ont. C.A.), Sable Offshore Energy Inc. v. Canada (Customs and Revenue Agency), 2003 FCA 220, Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378, Levesque v. Crampton Estate, 2017 ONCA 455, McLean v. British Columbia (Securities Commission), 2013 SCC 67, Papamonolopoulos v. Board of Education for the City of Toronto (1986), 56 O.R. (2d) 1 (C.A.), Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, Mumford v. Health Sciences Centre (1987), 92 D.L.R. (3d) 64...