Court Of Appeal Summaries (May 15, 2023 ' May 19, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Litigation, Mediation & Arbitration, Tax, Transport, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Family Law, Rail, Road & Cycling, Trials & Appeals & Compensation, Property Taxes
• Author: Mr John Polyzogopoulos
• Published date: 30 May 2023

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of May 15, 2023.

In Hydro One Networks Inc. v. Shiner, Hydro sought a declaration that it had a prescriptive easement to an access road on the respondent's private property where it was required to maintain transmission lines and towers. The application judge held that Hydro had not established that the use of the access road was continuous or "as of right", finding that Hydro's use was "occasional at best". Blaneys' own Reeva Finkel, Brendan Jones and Ines Ferreira successfully appealed the decision of the application judge. The Court found that Hydro had provided uncontroverted evidence establishing that Hydro's use of the access road was continuous and without express permission for more than 40 years. The Court noted that the meaning of 'continuous' must be viewed in the context of the right being claimed and concluded that Hydro had established a prescriptive easement.

In Moffitt v. TD Canada Trust, the appellant suffered a vicious assault when using an ATM machine located in a vestibule of one of the branches of the respondent, TD. The motion judge granted TD's motion for summary judgment and dismissed the action against it. The appeal was dismissed.

In Catholic Children's Aid Society of Toronto v. V.O., the Court clarified the flexible application of the test for leave for a status review application in child protection cases as set out in Children's Aid Society of Metro Toronto v. B.A.F., noting that a strict application of the criteria would fetter judicial discretion under s. 115(5) of the Child, Youth and Family Services Act, 2017. The Court found that the B.A.F. criteria was applied correctly by the motion judge, and was correctly upheld by the appeal judge. The appeal was dismissed.

Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc. considered the legal principle applicable to the application of res judicata. The Court, in considering cause of action estoppel and issue estoppel, dismissed the appellant's appeal on the basis that the requested vesting order and declaration could not extinguish other claims or insulate an option to purchase property from challenge, and that such claims were not barred by the application judge's earlier orders. The Court also considered declaratory relief available on an application. The Court found that there was no basis to interfere with the application judge's exercise of discretion not to grant a declaration foreclosing and dismissing challenges to the option to purchase.

Other topics covered this week included the enforcement of a settlement, reasonable apprehension of bias in a family law case involving self-represented litigants and extension of time to appeal.

Wishing everyone an enjoyable weekend.

Civil Decisions

Hydro One Networks Inc. v. Shiner, 2023 ONCA 346

Keywords: Real Property, Prescriptive Easements, Continuous Use, Consent, Civil Procedure, Evidence, Affidavits, Admissibility, Land Titles Act, R.S.O. 1990, c. L.5, Ontario Energy Board Act, 1998, S.O. 1998, c. 15, Sch. B, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 31, Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff'd 2018 ONCA 521, Balogh v. R.C. Yantha Electric Ltd., 2019 ONSC 6748, Condos and Castles Realty Inc. v. Janeve Corp., 2015 ONCA 466, Axler et al. v. Chisholm (1977), 16 O.R. (2d) 665, Creeggan v. Fijalkowski, 1990 CarswellOnt 5116 (Ont. Dist. Ct,), L.M.U. v. R.L.U., 2004 BCSC 95, Vivekanandan v. Terzian, 2020 ONCA 110, Caldwell v. Elia (2000), 30 R.P.R. (3d) 295 (Ont. C.A.), Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.), J. Gaunt QC and the Honourable P. Morgan, Gale on Easements, 19th ed. (London, England: Sweet & Maxwell, 2012)

Moffitt v. TD Canada Trust , 2023 ONCA 349

Keywords: Torts, Negligence, Occupier's Liability, Civil Procedure, Summary Judgment, Jury Notice, Expert Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 108(1), Occupier's Liability Act, R.S.O. 1990, c. O.2., Family Law Act, R.S.O. 1990, c. F.3, Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(1), Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 20, Rules of Civil Procedure, rr. 1.04(1), 14.05(3), 20.04(2)(a), 20.04(2)(b), 20.04(2.1), 20.04(2.2), 21.01(1)(a)), 21.01(1)(b), 22.01, 53.03(2.1), 53.03(3), 53.08(1), 76, R. v. Pangan, 2014 ONCJ 229, Cowles v. Balac, (2006), 83 O.R. (3d) 660 (C.A.), Louis v. Poitras, 2021 ONCA 49, Moffitt v. TD Canada Trust, 2019 ONSC 5208, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 Roy v. Ottawa Capital Area Crime Stoppers, 2018 ONSC 4207, Hryniak v. Mauldin, 2014 SCC 7, R. v. Mohan, [1994] 2 S.C.R. 9

Haider v. Rizvi , 2023 ONCA 354

Keywords: Contracts, Civil Procedure, Settlements, Enforcement, Limitations Act, 2002,S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure,, R. 49.09, Terranata Winston Churchill Inc. v. Teti Transport Ltd., et al., 2020 ONSC 7577, Donaghy v. Scotia Capital Inc./Scotia Capitaux Inc., 2009 ONCA 40, Gianopoulos v. Olga Management Ltd. (2006), 207 O.A.C. 58 (C.A.), Vanderkop v. Manufacturers Life Insurance Company (2005), 78 O.R. (3d) 276 (S.C.), aff'd (2006), 40 C.C.L.I. (4th) 180 (Ont. C.A.). 1504641 Ontario Inc. et al. v. 2225902 Ontario Inc. et al., 2021 ONSC 2917, aff'd 2022 ONCA 175, Dodla v. Dodla, 2022 ONSC 5648, GMBR Capital Corp.v.Parmar, 2021 ONSC 7798, Fieguth v. Acklands Ltd. (1989), 59 D.L.R. (4th) 114 (B.C.C.A.), Hodaie v. RBC Dominion Securities,2012 ONCA 796, Umholtz v. Umholtz (2004), 238 D.L.R. (4th) 736 (Ont. S.C.), Gedco Excavating Ltd. v. Aqua-Tech Dewatering Co., [2014] O.J. No. 2513 (S.C.), Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Gen. Div.), aff'd [1995] O.J. No. 3773 (C.A.), Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: LexisNexis, 2020)

Stanley v. Lucchese, 2023 ONCA 357

Keywords:Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 123, Rules of Civil Procedure, r. 61.04, Echelon Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763, Butera v. Chown, Cairns LLP, 2017 ONCA 783, Malik v. Attia, 2020 ONCA 787

Kim v. McIntosh , 2023 ONCA 356

Keywords: Family Law, Parenting Time, Decision Making Authority, Child Support, Civil Procedure, Uncontested Trials, Appeals, Stay Pending Appeal, Reasonable Apprehension of Bias, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 24(2), s.24(3), s.37, Family Law Act, R.S.O. 1990, c. F.3, s. 31, Child Support Guidelines, O. Reg. 391/97, s.19(1)(a), Family Law Rules, O. Reg. 114/99, rr. 2(2)(3)(5), r. 25(19), Kim v. McIntosh, 2020 ONSC 719, Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), Dickie v. Dickie, 2007 SCC 8, Lamothe v. Ellis, 2022 ONCA 789, Gray v. Gray, 2017 ONCA 100, Wewaykum Indian Band v. Canada, 2003 SCC 45, R. v. S. (R.D.), [1997] 3 S.C.R. 484, Bailey v. Barbour, 2012 ONCA 325

Catholic Children's Aid Society of Toronto v. V.O., 2023 ONCA 355

Keywords: Family Law, Child Protection, Best Interests of the Child, Status Review, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 112, s. 115(5), s. 115(7), s. 115(9), s. 122(1), Family Law Rules, O. Reg. 114/99, r. 2, Children's Aid Society of Metro Toronto v. B.A.F., [1988] O.J. No. 2950 (Prov. Ct. (Fam. Div.)), Children's Aid Society of Haldimand and Norfolk v. J.A.M.-F., 2011 ONCJ 53, Titova v. Titov, 2012 ONCA 864, Children's Aid Society of Hamilton v. M.W., 2011 ONSC 1382, Children's Aid Society of Waterloo Region v. L.M., 2015 ONCJ 103, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), The Children's Aid Society of Toronto v. S.C., 2017 ONCJ 240, S.R. v. Catholic Children's Aid Society of Toronto, 2011 ONCJ 11, Children's Aid Society of Brant v. A.C., 2015 ONCJ 436, M.P. v. Windsor-Essex Children's Aid Society and S.G., 2022 ONCJ 298

Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363

Keywords:Bankruptcy and Insolvency, Contracts, Real Property, Option to Purchase, Civil Procedure, Vesting Orders, Res Judicata, Cause of Action Estoppel, Issue Estoppel, Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, Assignments and Preferences Act, R.S.O. 1990, c. A.33, Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 65.11, ss. 95, ss. 96, Interest Act, R.S.C. 1985, c. I-15, s. 8(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97, Rules of Civil Procedure, r. 14.02, r. 14.05, In the Matter of the Notice of Intention to make a Proposal of CIM Bayview Creek Inc., 2021 ONSC 220, Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, Nortel Networks Corporation (Re), 2013 ONCA 518, Solosky v. The Queen, [1980] 1 S.C.R. 821, Grain Farmers of Ontario v. Ontario (Ministry of the Environment and Climate Change), 2016 ONCA 283, J.N. v. Durham Regional Police Service, 2012 ONCA 428, Harrison v. Antonopoulos (2002), 62 O.R. (3d) 463 (S.C.), S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, T1T2 Limited Partnership v. Canada (1995), 23 O.R. (3d) 81 (Gen. Div.), aff'd (1995), 24 O.R. (3d) 546 (C.A.), Harry Woolf & Jeremy Woolf, Zamir & Woolf: The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), Lazar Sarna, The Law of Declaratory Judgments, 4th ed. (Toronto: Thomson Reuters, 2016)

Short Civil Decisions

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 353

Keywords: Civil Procedure, Costs, Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245

RCML Corp. v. 2524258 Ontario Inc., 2023 ONCA 352

Keywords:...