Court Of Appeal Summaries (July 31 ' August 4)

• Published date: 08 August 2023
• Subject Matter: Finance and Banking, Employment and HR, Litigation, Mediation & Arbitration, Criminal Law, Charges, Mortgages, Indemnities, Unfair/ Wrongful Dismissal, Libel & Defamation, White Collar Crime, Anti-Corruption & Fraud
• 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 July 31, 2023.

In Bank of Montreal v. Iskenderov, a five-member panel of the Court determined that the limitation period applicable to fraudulent conveyance actions under the Fraudulent Conveyances Act is two years, not ten years. The Limitations Act, 2002, including the provisions relating to discoverability, applies to such actions. The ten-year limitation period relating to claims to recover land under the Real Property Limitations Act does not apply. In coming to this decision, the Court overruled its own prior decision to the contrary in Anisman v. Drabinsky, 2021 ONCA 120.

In Oliveira v. Oliveira, the appellant had breached the deemed undertaking rule and been found in contempt of court for not obeying various court orders. He was sentenced to 89 days in jail for his contempt. The Court found the sentence too harsh and set it aside. It also reduced the costs ordered against the appellant.

In Froom v Lafontaine, the respondent SL is alleged by her husband to have fraudulently registered a notice of change with the Ministry of Government Services to make herself the sole officer and director of his corporation (the appellant), and subsequently mortgaged a property registered to the appellant corporation. Upon default and enforcement of the mortgage by the mortgagee, the husband attempted to set aside the mortgage based on SL's fraud. The Court dismissed the appeal, holding that whether or not SL was fraudulent in registering a notice of change to make herself the sole officer and director of the corporation did not change the fact that the mortgage executed on behalf of the corporation was itself authentic. This decision places the risk of fraud regarding who is authorized to act for a corporate mortgagor with the corporation and its true principals, and not on lenders who lend to corporations.

Mondal v Kirkconnell is another Anti-SLAPP case. Both defamation actions were dismissed by the Anti-SLAPP motion judge. The Court allowed the appeal in respect of one of the two actions.

In Hiawatha First Nation v. Cowie, the Court considered whether a resolution issued by a band council regarding land-use planning should be considered a by-law and thereby be enforceable by way of injunction. The issues involved a consideration of both municipal law and the aboriginal law. The resolution in this case was found not to be a by-law.

Other topics covered this week included agreements of purchase and sale of land, breach of fiduciary duty and unjust enrichment.

Wishing everyone an enjoyable long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Oliveira v. Oliveira, 2023 ONCA 520

Keywords: Contracts, Employment, Wrongful Dismissal, Torts, Defamation, Civil Procedure, Deemed Undertaking Rule, Contempt, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Rules of Civil Procedure, r. 30.1.01, Goodman v. Rossi (1995), 24 O.R. (3d) 359 (C.A.), Juman v. Doucette, 2008 SCC 8, Dickie v. Dickie (2006), 78 O.R. (3d) 1 (C.A.), Susin v. Susin, 2014 ONCA 733, R. v. Bird, 2019 SCC 7, Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, Boily v. Carlton Condominium Corp. 145, 2014 ONCA 574, R. v. Proulx, 2000 SCC 5, Poulie v. Johnston, 2022 ONSC 5186, Ontario (Attorney General) v. Paul Madger Furs Ltd. (1993), 12 O.R. (3d) 72 (Gen. Div.)., Astley v. Verdun, 2015 ONCA 543, Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 6 O.R. (3d) 188 (C.A.)

Froom v Lafontaine, 2023 ONCA 519

Keywords: Real Property, Land Titles, Fraud, Mortgages, Deferred Indefeasibility, Corporations, Indoor Management Rule, Civil Procedure, Partial Summary Judgment, Land Titles Act, R.S.O. 1990, c. L.5, ss. 1 and 78(4), Legislation Act, 2006, S.O. 2006, c. 21, s. 87, Business Corporations Act, R.S.O. 1990, c. B.16, s. 19, Bills of Exchange Act, R.S.C. 1970, c. B‑5, Land Transfer Act, 1875 (38 & 39 Vict. c. 87), 1168760 Ontario Inc. v. 6706037 Canada Inc., 2019 ONSC 4702, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, CIBC Mortgages Inc. v Chan, 2004 CanLII 66351 (Ont. S.C.), Household Realty Corporation Ltd. v. Liu (2005), (4th) 679 (Ont. C.A.), Ontario Securities Commission v. Money Gate Mortgage Investment Corporation, 2020 ONCA 812, Fok Cheong Shing Investments Co. Ltd. v. Bank of Nova Scotia, [1982] 2 S.C.R. 488, 2659954 Ontario Inc. (1 February 2021), Toronto (Director of Land Titles), MacIsaac v. Salo, 2013 ONCA 98, Feltz Design Build Ltd. v. Larson, 2022 ONCA 15, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Lawrence v. Maple Trust Company, 2007 ONCA 74, Hryniak v. Mauldin, 2014 SCC 7

Mondal v. Kirkconnell, 2023 ONCA 523

Keywords: Torts, Defamation, Slander, Anti-SLAPP, Defences, Fair Comment, Malice, Public Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Bernier v. Kinsella et al., 2021 ONSC 7451, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, WIC Radio Ltd. v. Simpson, 2008 SCC 40, Blair v. Ford, 2021 ONCA 841, Bent v. Platnick, 2020 SCC 23, Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 26, Canadian Union of Postal Workers v. B'nai Brith Canada, 2021 ONCA 529, Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, Lascaris v. B'nai Brith Canada, 2019 ONCA 163, Zoutman v. Graham, 2019 ONSC 2834, Ross v. New Brunswick Teachers' Assn., 2001 NBCA 62, Hansman v. Neufeld, 2023 SCC 14, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 381, Peter A. Downard, The Law of Libel in Canada, 5th ed. (Toronto: LexisNexis, 2022), Timothy Endicott, "Proportionality and Incommensurability" in Grant Huscroft, Bradley W. Miller & Grégoire Webber, eds., Proportionality and the Rule of Law: Rights, Justification, Reasoning (New York: Cambridge University Press, 2014) 311

Hiawatha First Nation v. Cowie, 2023 ONCA 524

Keywords: Municipal Law, Land-Use Planning, Zoning By-Laws, Aboriginal Law, Indigenous Law, Indian Act, R.S.C. 1985, c. I-5., Hiawatha First Nation Land Code, Indian Advancement Act, 1884, Statutory Instruments Act, R.S.C. 1985, c. S-22, First Nations Fiscal Management Act, S.C. 2005, c. 9, First Nations Land Management Act, S.C. 1999, c. 24, Framework Agreement on First Nation Land Management Act, S.C. 2022, c. 19, s. 121, Indian Act Amendment and Replacement Act, S.C. 2014, c. 38, Knibb Developments Ltd. v. Siksika Nation, 2021 FC 1214, Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119, Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85, Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, Louie v. Canada (Indigenous Services), 2021 FC 650, Gamblin v. Norway House Cree Nation Band, [2001] 2 C.N.L.R. 57 (F.C.T.D.), Whalen v. Fort McMurray No. 486 First Nation, 2019 FC 732, R. v. Jimmy (1987), 15 B.C.L.R.(2d) 145 (C.A.)

Rahbar v. Parvizi, 2023 ONCA 522

Keywords: Contracts, Repudiation, Real Property, Agreements of Purchase and Sale of Land, Equitable Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, c. C.43, s 98, Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.), Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282, Benedetto v. 2453912 Ontario Inc., 2019 ONCA 149, HW Liebig Co. v. Leading Investments Ltd., [1986] 1 S.C.R. 70, Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Azzarello v. Shawqi, 2019 ONCA 820

Aiello v. Bleta, 2023 ONCA 525

Keywords: Trusts, Trustees, Fiduciary Duties, Breach, Unjust Enrichment, Inter Vivos, Promissory Estoppel, Trustee Act, R.S.O. 1990, c. T.23, Housen v. Nikolaisen, 2002 SCC 33, Waxman v. Waxman, 44 B.L.R. (3d) 165, 186 O.A.C. 201 (C.A.), Pecore v. Pecore, 2007 SCC 17, Prolink Broker Network Inc. v. Jaitley, 2013 ONSC 4497, Ruparell v. J. H. Cochrane Investments Inc. et al., 2020 ONSC 7466, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Combe v. Combe, [1951] 2 KB 215 (E.W.C.A.), Cowper-Smith v. Morgan, 2017 SCC 61

More v. 1362279 Ontario Ltd. (Seiko Homes), 2023 ONCA 527

Keywords: Contracts, Anticipatory Breach, Real Property, Agreements of Purchase and Sale of Land, Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051, 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, Domicile Developments Inc. v. MacTavish (1999) 45 O.R. (3d) 302 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Davies v. Clarington (Municipality), 2009 ONCA 722, Standard Life Assurance Company v. Elliott (2007), 86 O.R. (3d) 221 (SCJ), Osmani v. Universal Structural Restorations Ltd. et al., 2023 ONSC 1041, Best v. Lancaster, 2015 ONSC 6269, Brad-Jay Investments Limited v. Village Developments Limited, 2006 CanLII 42636 (ON CA)

Bank of Montreal v. Iskenderov, 2023 ONCA 528

Keywords: Contracts, Debtor-Creditor, Enforcement, Real Property, Fraudulent Conveyances, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, Real Property Limitations Act, R.S.O. 1990, c. L.15, s 4, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s 178, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Rules of Civil Procedure, r. 48.14, Anisman v. Drabinsky, 2021 ONCA 120, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 572383 Ontario Inc. v. Dhunna (1987), 24 C.P.C. (2d) 287 (Ont. S.C.), Trites v. Humphreys (1899), 2 N.B. Eq. 1, Three Towns Banking Co. v. Maddever, (1884) 27 Ch. D. 523 (U.K. C.A.), Brown v. Weil (1927), 61 O.L.R. 55, Perry, Farley & Onyschuk v. Outerbridge Management Ltd. (2001), 54 O.R. (3d)...