Court Of Appeal Summaries (September 25 ' September 29)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Author: Mr John Polyzogopoulos and Ines Ferreira
• Published date: 03 October 2023

Following are this week's summaries of the Court of Appeal for Ontario for the week of September 25, 2023. It was another fairly light week.

Topics covered this week included: stay pending appeal to the Supreme Court of Canada of a constructive trust claim arising out of fraud, adverse possession, a dispute over the purchase of a Ferrari, extension of time to appeal in a class action against Amazon, and a breach of contract case involving the lease of solar panel equipment.

Table of Contents

Civil Decisions

Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644

Keywords: Torts, Fraud, Breach of Fiduciary Duty, Remedies, Constructive Trust, Unjust Enrichment, Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Sase Aggregate Ltd. v. Langdon, 2023 ONCA 554, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, Hollinger Inc. (Re), 2011 ONCA 765, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (C.A.), Alectra Utilities Corp. v. Solar Power Network Inc., 2019 ONCA 332, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, B.M.P Global Distribution Inc. v. Bank of Nova Scotia, 2007 BCCA 52, ICBO v. Lo, 2006 BCCA 584, Donovan v. Sherman Estate, 2019 ONCA 465, Ting (Re), 2019 ONCA 768, Ducharme v. Hudson, 2021 ONCA 151, Yaiguaje v. Chevron Corporation, 2014 ONCA 40

Hitti v Maranello Sports Inc (Ferrari of Ontario), 2023 ONCA 633

Keywords: Civil Procedure, Consent Order, Agreement of Purchase and Sale, Continuation Order, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(2)(a),

Davis v. Amazon Canada Fulfillment Services, ULC, 2023 ONCA 634

Keywords: Civil Procedure, Class Proceedings, Appeals, Joinder, Transfer, Extension of Time, Class Proceedings Act, 1992, S.O. 1992, c 6, Arbitration Act, 1991, S.O. 1991, c. 17, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1), Cavan augh v. Grenville Christian College, 2013 ONCA 139

MacQuarrie v. Proulx, 2023 ONCA 625

Keywords: Real Property, Adverse Possession, Barbour v. Bailey, 2016 ONCA 98, Laing v. Moran, [1952] O.R. 215 (C.A.), Mueller v. Lee (2007), 59 R.P.R. (4th) 199 (Ont. S.C.), Tramonti v. Lombardi (1997), 12 R.P.R. (3d) 105 (Ont. C.A.)

Grasshopper Solar Corporation v. Palmer, 2023 ONCA 631

Keywords: Breach of Contract, Damages, Civil Procedure, Appeals, Rules of Civil Procedure, Rule 61.04(1), Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Kaiman v. Graham, 2009 ONCA 77, Syndicate 1221 (Millennium Syndicate) v. Coventree Inc., 2012 ONCA 341

Short Civil Decisions

Sase Aggregate Ltd. v. Langdon, 2023 ONCA 643, 2023 ONCA 643

Keywords: Civil Procedure, Costs

Collins v. Ontario, 2023 ONCA 646

Keywords: Civil Procedure, Vexatious Litigation, Canadian Charter of Rights and Freedoms, s 15, 24(1), Rules of Civil Procedure, Rule 2.1, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720

CIVIL DECISIONS

Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644

[MacPherson J.A. (Motion Judge)]

COUNSEL:

C. G. Carter, for the moving party

J. Montgomery, for the responding party
Keywords: Torts, Fraud, Breach of Fiduciary Duty, Remedies, Constructive Trust, Unjust Enrichment, Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1(1), Sase Aggregate Ltd. v. Langdon, 2023 ONCA 554, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 919, Hollinger Inc. (Re),2011 ONCA 765, Circuit World Corp. v. Lesperance(1997), 33 O.R. (3d) 674 (C.A.), Alectra Utilities Corp. v. Solar Power Network Inc.,2019 ONCA 332, Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, B.M.P Global Distribution Inc. v. Bank of Nova Scotia, 2007 BCCA 52, ICBO v. Lo, 2006 BCCA 584, Donovan v. Sherman Estate, 2019 ONCA 465, Ting (Re), 2019 ONCA 768, Ducharme v. Hudson, 2021 ONCA 151, Yaiguaje v. Chevron Corporation, 2014 ONCA 40

FACTS:

The moving party was defrauded by its manager for over $2.1 million. It sought to recover stolen funds from the manager's wife (the responding party), alleging the money was used to buy and renovate a property she owned. The Court acknowledged the moving party was indeed defrauded, but dismissed its appeal for a constructive trust over the property's net sale proceeds. The application judge previously found that only $177,632.38 of the moving party's funds were traceable to the property, with the responding party unaware of the fraud and using legitimate funds for the property's purchase and renovation. The moving party's appeal contested the need for a fiduciary relationship and the adequacy of fund tracing but was rejected, with the Court citing an ill-suited application procedure and incomplete records, making the movement of fraudulently-obtained funds unclear. Justice van Rensburg found no legal error or significant factual error in the application judge's decision.

The moving party, Sase Aggregate Ltd., sought a stay of an Order of the Court dated August 21, 2023, pending its application for leave to appeal to the Supreme Court of Canada.

ISSUES:

Should a stay of the order of the Court dismissing the appeal be granted pending the application for leave to appeal to the Supreme Court of Canada?

HOLDING:

Motion granted.

REASONING:

Yes.

Pursuant to s. 65.1 (1) of the Supreme Court Act(the "SCA"), a judge or panel of the Court of Appeal may hear a motion to stay a judgment of the Court of Appeal pending leave to appeal to the Supreme Court of Canada. The moving party indicated it can file its materials with the Supreme Court of Canada within 14 days if pressed, and 30 days comfortably. The Court was satisfied that the moving party intended to apply for leave to appeal at the Supreme Court of Canada and will do so in a timely fashion.

In RJR-MacDonald Inc. v. Canada (Attorney General), the Supreme Court of Canada outlined a three-part test for obtaining a stay of a judgment pending appeal: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

(1) Serious Question: The moving party asserted that the decision of the Court for which it now sought leave to appeal represented a narrower interpretation of the law of constructive trusts in relation to unjust enrichment and was inconsistent with leading cases of the British Columbia...