Court Of Appeal Summaries (April 3 ' 6, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Employment and HR, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, Financial Services, Corporate and Company Law, Unfair/ Wrongful Dismissal, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Civil Law
• Author: Mr John Polyzogopoulos and Ines Ferreira
• Published date: 24 April 2023

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of April 3, 2023.

Skymark Finance Corporation v. Ontario is the latest example of the application of the rule that an action will be stayed if there is any delay in the disclosure to the non-settling defendants of a settlement that changes the litigation landscape.

Boyer v. Callidus Capital Corporation is a wrongful dismissal claim that turned into an Anti-SLAPP case. The Court found that Callidus had counterclaimed against its former executive who had sued for wrongful dismissal in order to silence him and other employees regarding the allegedly "toxic work environment" at Callidus. The motion judge dismissed the plaintiff's Anti-SLAPP motion to dismiss the counterclaim, but the Court of Appeal overturned that decision.

Other topics covered included dishonest lawyer coverage under LawPro's policy, a claim on personal guarantees and the limitation period applicable to the enforcement of riparian rights under the Real Property Limitations Act.

Happy Easter, Passover and Ramadan to all those celebrating.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Browne v. Meunier, 2023 ONCA 223

Keywords: Real Property, Riparian Rights, Statutory Interpretation, Civil Procedure, Limitation Periods, Discoverability, Real Property Limitations Act, S.O. 2002, c. 24, Limitations Act, 2002, S.O. 2002, c. 24, Pioneer Corp. v. Godfrey, 2019 SCC 42, Mihaylov v. Long Beach Residents' Association, 2018 ONSC 14

Skymark Finance Corporation v. Ontario, 2023 ONCA 234

Keywords: Civil Procedure, Settlements, Disclosure, Change in Litigation Landscape, Stay of Proceeding, Abuse of Process, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Laudon v. Roberts, 2009 ONCA 383, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Poirier v. Logan, 2022 ONCA 350, CHU de Québec- Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Performance Analytics v. McNeely, 2022 ONCA 731, Crestwood Preparatory College Inc v. Smith, 2022 ONCA 743

Castle Building Centres Group Ltd. v. The Rehill Company Limited, 2023 ONCA 237

Keywords:Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, No Genuine Issue Requiring Trial, Rules of Civil Procedure, r. 20.04(2)(a), Palmer v. The Queen, [1980] 1 S.C.R. 759, Hyrniak v. Mauldin, 2014 SCC 7, Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONCA 878, Housen v. Nikolaisen, 2002 SCC 33, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Boyer v. Callidus Capital Corporation, 2023 ONCA 233

Keywords:Employment Law, Wrongful Dismissal, Constructive Dismissal, Torts, Defamation, Civil Procedure, Anti-SLAPP, Amending Pleadings, Striking Pleadings, No Reasonable Cause of Action, Frivolous, Vexatious, Abuse of Process, Summary Judgment, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Rules of Civil Procedure, r. 21, The Catalyst Capital Group Inc. v. West Face Capital Inc., 2021 ONSC 125, Zoutman v. Graham, 2020 ONCA 767, Labourers' International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Galambos v. Perez, 2009 SCC 48, Platnick v. Bent, 2018 ONCA 687, Park Lawn Corporation v. Kahu Capital Partners, 2023 ONCA 129, Ridel v. Cassin, 2014 ONCA 763, Britton v. Manitoba, 2011 MBCA 77, Farmers Oil and Gas Inc. v. Ontario (Natural Resources), 2016 ONSC 6359, Cahoon v. Franks, [1967] S.C.R. 455

1170650 Ontario Ihnc. V. McEnery, 2023 ONCA 238

Keywords: Contracts, Insurance, Lawyers' Errors and Omissions, Coverage, Exclusions, Dishonest Conduct, Rules of Civil Procedure, r. 60.08(16), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Housen v. Nikolaisen, 2002 SCC 33

Short Civil Decisions

Libfeld v. Libfeld, 2023 ONCA 235

Keywords: Costs Endorsement, Corporations, Oppression

Skyline Real Estate Acquisitions (III) Inc. v. Peterborough Retail Portfolio LP, 2023 ONCA 236

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Estoppel, Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7

CIVIL DECISIONS

Browne v. Menuier, 2023 ONCA 223

[Miller, Trotter and Favreau JJ.A.]

Counsel:

J. McCarthy, for the appellants/respondents by way of cross-appeal

M. Adams, for the respondents/appellants by way of cross-appeal

Keywords: Real Property, Riparian Rights, Statutory Interpretation, Civil Procedure, Limitation Periods, Discoverability, Real Property Limitations Act, S.O. 2002, c. 24, Limitations Act, 2002, S.O. 2002, c. 24, Pioneer Corp. v. Godfrey, 2019 SCC 42, Mihaylov v. Long Beach Residents' Association, 2018 ONSC 14

facts:

In 2017, the appellants purchased their cottage, situated on an inlet of the St. Lawrence River. The respondents owned a neighbouring property, which they purchased in 2015. When the appellants purchased the cottage, they believed the property included a derelict boat house located in the foreshore, which they intended to demolish. It was later discovered that the boat house, which had been constructed in 1969 by the respondents' predecessors in title, in fact belonged to the respondents.

In 2018, the appellants commissioned a survey that confirmed the boat house was located directly in front of their property.

In 2020, the appellants sought a declaration that the boat house interfered with their riparian rights of access to the St. Lawrence River. The trial judge found that the appellants had riparian rights of access to the waters and that the appellants had established a violation of their riparian rights. Nevertheless, the trial judge found that the appellants were time-barred from bringing an action against the respondents to enforce these rights by operation of ss. 4 and 15 of the Real Property Limitations Act ("RPLA")

issues:

(1) Did the trial judge err in finding that the discoverability rule did not apply to s. 4 of the RPLA?

(2) Did the trial judge err in determining when the cause of action for infringement of riparian rights accrued?

holding:

Appeal and cross-appeal dismissed.

reasoning:

(1) Yes.

The Court held that the Supreme Court in Pioneer Corp. v. Godfrey ("Pioneer Corp.") made it clear that the applicability of the discoverability rule to a statutory limitations provision is a matter of statutory interpretation, that is, of ascertaining how the legislature intended to change the law through the statutory text it enacted. The discoverability rule applies even where it is not expressly referenced in the provision. That is, "even where the statute does not explicitly state that the limitation period runs from 'the accrual of the cause of action', discoverability will apply if it is evident that the operation of a limitation period is, in substance, conditioned upon accrual of a cause of action or knowledge of an injury" (Pioneer Corp.). The trial judge erred in failing to consider how the common law rule of discoverability interacts with the provisions of the RPLA.

The Court found that s. 4 of the RPLA expressly references the accrual of the action and that s. 15 of the RPLA provides that at the end of the ten year period, the right to bring an action is extinguished. In the Court's view, applying the proposition articulated in Pioneer Corp. to the interpretation of s. 4 of the RPLA led to the conclusion that discoverability must apply to that section. The trigger for bringing the action was the accrual of the action and not some external event. The running of the limitation period under s. 4 would therefore be tolled until the material facts constituting the infringement were discovered or were discoverable by a reasonably diligent person in the circumstances of the rights holder. Further, s. 28 of the RPLA, which explicitly provides for discoverability in cases of concealed fraud, was overcome by the strength of the competing interpretive principle articulated in Pioneer Corp., which presumed the application of the discoverability rule and required explicit language to oust its application.

(2) Yes.

The Court held that s. 4 of the RPLA referred to the time when the right of action first accrued "to some person through whom the person making it or bringing it claims." Riparian rights run with the property, so an action for breach of such rights can "accrue" to the predecessor(s) in title at the time of the breach, and pass to a subsequent holder of title. The salient question was whether (and when) the breach of riparian rights was knowable by the appellants' predecessors in title.

The Court held that the infringement of the riparian rights of the appellants' predecessors in title would have had to have been obvious to those predecessors from the time the boat house was constructed in 1969. Once the predecessor's right of action had been extinguished under s. 15, it could not be revived by transferring title. While the trial judge's finding that the limitation period for bringing an action began to run from the time the boat house was built in 1969 and expired ten years later was inaccurate, the outcome that the claim was statute-barred persisted, albeit for...