Court Of Appeal Summaries (March 6 ' 10, 2023)

• Published date: 20 March 2023
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Real Estate and Construction, Family and Matrimonial, Family Law, Advertising, Marketing & Branding, Landlord & Tenant - Leases, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of March 6, 2023.

In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), the Court released its decision pertaining to three appeals concerning the Election Finances Act ("EFA") and whether it infringed the informational component of the right to vote under section 3 of the Charter. The amendments to the EFA restricted spending on advertising by third parties to $600,000 in the twelve months leading up to the provincial election. In each case, the appellants argued that the application judge erred in interpreting and applying sections 33 and 3 of the Charter, and that such infringements were not saved under section 1. The Court considered the constitutionality of the provisions of the EFA that were struck down, then re-enacted unchanged through Protecting Elections and Defending Democracy Act, 2021, which invoked the notwithstanding clause under section 33 of the Charter. Justices Zarnett and Sossin, for the majority, held that the application judge did not err in finding that there was no infringement of section 33, but did err in finding no infringement of section 3. Further, applying the Oakes test, the majority of the Court held that the infringement of section 3 was not saved under section 1 of the Charter. In a dissenting opinion decision, Justice Benotto found that section 3 of the Charter was not infringed, agreeing with the application judge.

In Children's Aid Society of London and Middlesex v. T.E., the Court considered an appeal from a motion judge's decision dismissing the appellant's motion to be added as a party to a child's protection proceeding. The Court found that the motion erred in considering only the discretionary party status under the Family Law Rules stating that the motion judge should have also considered the provincial legislation, Child, Youth and Family Services Act, and the federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families. Accordingly, the motion judge erred by equating the appellant kin giver to a foster parent (the latter being statutorily excluded as a having party status). In so doing, the Court found that the child protection proceeding should not have been dismissed before determining who the parties were. The Court found that by not determining the parties and dismissing the application, the motion judge failed to consider the best interests of the child.

In Niagara Falls Shopping Centre Inc. v. LAF Canada Company, the Court grappled with determining the obligations of a landlord and tenant to a commercial lease pursuant to a force majeure clause. The Court held that the force majeure clause was triggered by the government lockdown announcement during the COVID-19 pandemic. However, the Court stated that the force majeure clause only operated to excuse the landlord of its obligations during the lockdown period. This was because the landlord's inability to fulfill the contract was solely because of the government announcement, whereas the tenant's inability pay rent was a lack of funds. A lack of financial ability to pay was expressly excluded as an event that triggered the force majeure clause.

Other topics covered this week included a extension of time to appeal, summary judgment and a claim for coverage under a credit risk insurance policy.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.597.4895 Email

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Table of Contents

Civil Decisions

Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139

Keywords: Election Law, Election Spending Restrictions, Constitutional Law, Freedom of Expression, Political Advertising, Notwithstanding Clause, Oakes Test, Election Finances Act, R.S.O. 1990, c. E.7, s. 1(1), s. 37.0.1, s. 37.10.1(2), s. 37.10.1(3.1), s. 37.10.2, s. 45.1, s. 46.0.2, s. 47, s. 48, Canadian Charter of Rights and Freedoms, s.1, s.2(b), s. 3, s. 33, s. 33(1), s. 33(3), Protecting Elections and Defending Democracy Act, 2021, S.O. 2021, c. 31, Election Act, R.S.O. 1990, c. E.6, s. 9(2), s. 53.1(1), Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Harper v. Canada (Attorney General), 2004 SCC 33, Working Families Ontario v. Ontario, 2021 ONSC 4076, Housen v. Nikolaisen, 2002 SCC 33, Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, Frank v. Canada (Attorney General), 2019 SCC 1, Figueroa v. Canada (Attorney General), 2003 SCC 37, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, R. v. Oakes, [1986] 1 S.C.R. 103, Harper v. Canada (Attorney General), 2001 ABQB 558, Marcoux v. Bouchard, 2001 SCC 50, R. v. G.F., 2021 SCC 20, Robert Leckey & Eric Mendelsohn, "The Notwithstanding Clause: Legislatures, Courts, and the Electorate" (2022), 72:2 U.T.L.J. 189, Yasmin Dawood, "The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints" (2016), 76 S.C.L.R. (2d) 353, at p. 359

Fockler v. Speigel, 2023 ONCA 148

Keywords: Solicitor and Client, Negligence, Civil Procedure, Summary Judgment, Limitation Periods, Appeals, Fresh Evidence, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4-5, Rules of Civil Procedure, rr. 37.14, r. 59.06, Waite v. Gershuny (2005), 194 O.A.C. 326 (Div. Ct.), Dass v. Kay, 2021 ONCA 565, Palmer v. The Queen, [1980] 1 S.C.R. 759

Children's Aid Society of London and Middlesex v. T.E., 2023 ONCA 149

Keywords: Family Law, Child Protection, Custody and Access, First Nations, Customary Care Agreements, Best Interests of the Child, Civil Procedure, Party Status, Kin Caregivers, Foster Parents, Children's Law Reform Act, R.S.O. 1990, c. C.12., Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, section 74(1) and section 79(1), First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Family Law Rules, O. Reg. 114/99, r. 7(5), M.L. v. Dilico Anishinabek Family Care, 2022 ONCA 240, A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, Catholic Children's Aid Society of Toronto v. D.L., 2014 ONCJ 587, Durham Children's Aid Society v. J.S., 2022 ONSC 2535, SMCYFS v. D.D., 2021 ONSC 1994, Windsor-Essex Children's Aid Society v. D.L.H., 2015 ONCJ 310, Cadieux v. Cloutier, 2018 ONCA 903

Grimm v. Ontario (Children's Lawyer), 2023 ONCA 161

Keywords:Family law, Parenting, Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious,Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Rules of Civil Procedure, r. 61.06, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), R. v. R. (2002), 58 O.R. (3d) 656 (C.A.), A.G.L. v. K.B.D (2009), 93 O.R. (3d) 409 (S.C.), Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, McNaughton Automotive Limited v. Co-Operators General Insurance Company (2008), 95 O.R. (3d) 365 (C.A.), Brad-Jay Investments Ltd. v. Szijjarto, 218 O.A.C. 315 (2006) (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159

Keywords:Contracts, Interpretation, Real Property, Commercial Leases, Force Majeure, COVID-19 Restrictions, Civil Procedure, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited, [1976] 1 S.C.R. 580, Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235

Short Civil Decisions

Rivas v. Anobile, 2023 ONCA 158

Keywords: Family Law, Matrimonial Home, Trust Property, Fraud, Breach of Fiduciary Duty

908593 Ontario Limited v. Atradius, 2023 ONCA 156

Keywords:Bankruptcy and Insolvency, Receiverships, Contracts, Insurance, Interpretation, Standard of Review, Palpable and Overriding Error, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA 908, Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, Crosby (Estate) v. Native Fishing Assoc., 2001 BCCA 118, Chilton v. Co-Operators General Insurance Co. (1997), 32 O.R. (3d) 161 (C.A.)

Tiwari v. Singh, 2023 ONCA 163

Keywords: Real Property, Mortgage, Civil Procedure, Summary Judgment, Evidence, Admissibility, Hearsay, Documents, Authenticity Rules of Civil Procedure, r. 20.02(1), Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200

Buffone v. Sokil, 2023 ONCA 168

Keywords: Wills and Estates, Civil Procedure, Contempt, Appeals, Stay Pending Appeal, Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, Belton v. Spencer, 2020 ONCA 623

Hill v. Cambridge (City), 2023 ONCA 164

Keywords: Civil Procedure, Vexatious Litigants, Appeals, Extension of Time, Rules of Civil Procedure, r. 2.1.01(1), Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208

CIVIL DECISIONS

Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139

[Benotte, Zarnett and Sossin JJ.A.]

Counsel:

H. Goldblatt, C. Davies, and A. Goldfinch, for the appellants the Elementary Teachers' Federation of Ontario and F.P.
P. Cavalluzzo, A. Telford, M. Thomarat, and K. Sier, for the appellants Working Families Coalition (Canada) Inc. and the Ontario English Catholic Teachers' Association
S. Ursel, K. Allen, E. Home, and N. Abraham, for the appellants the Ontario Secondary School Teachers' Federation and L.W.
R.W. Staley, J.G. Bell, D.A. Fenton, A.N. Sahai, and M.E. Steeves, for the respondent the Attorney General of Ontario
S. Aylward and D. Rakic, for the intervener the Chief Electoral Officer of Ontario
J. Cameron, C.D. Bredt, M. Kakkar, and D. Milton, for the intervener Centre for Free Expression at Ryerson University
C. Smith, M. Law, and P...