Court Of Appeal Summaries (October 16 ' 20, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, Trials & Appeals & Compensation, Professional Negligence
• Author: Mr John Polyzogopoulos
• Published date: 23 October 2023

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of October 16, 2023.

In Volpe v. Wong Tam, the appellant, the publisher of Corriere Canadese, criticized certain trustees of the Toronto Catholic District School Board (TCDSB) for policies he believed went against Roman Catholic teachings on sexuality and gender. After using strong language against a TCDSB's link to an LGBTQ2S+ resource, the City of Toronto was urged to cease advertising in Corriere Canadese. The appellant sued the respondents for defamation, but the case was dismissed as a potential SLAPP (Strategic Lawsuit Against Public Participation) under s. 137.1 of the Courts of Justice Act. The appeal from that decision was dismissed.

In Greenspan v Van Clieaf, a mortgage interpretation case, the appellants had extended two loans to Jaymor Securities Ltd., securing the first loan with a third mortgage on Jaymor's property. A promissory note outlined repayment terms at 2% interest per month. A discrepancy arose when the mortgage registration document listed the interest rate as 0.02%. The second loan was subject to a fourth mortgage if not repaid promptly, but Jaymor defaulted on both loans without agreeing to the registration of the fourth mortgage. The Court allowed the appeal, finding that the court below erred in several aspects. Firstly, subsequent events should not have been considered to determine contract ambiguity. Secondly, the promissory note's interest rate, though stated as "2% or $5,000 per month," did not introduce uncertainty. Thirdly, the delay in seeking an equitable fourth mortgage did not warrant the application of the doctrine of laches. As for the interest rate, the lower court's decision to terminate the accrual of interest at the time of the sale of the property was correct given the finite proceeds available for payout.

In Pereira v. TYLT Technologies Inc. (TYLTGO), the Court allowed an appeal from the dismissal of an oppression application, in the process converting the application to a trial and remitting it to the Superior Court.

Other topics this week included consolidation of leaves to appeal from judicial review applications in the provincial offences context, stay pending appeal and stay of an appeal in a dispute over mining royalty interests where the damages trial had not yet been completed, the enforcement of a no-claims over provision in a release in a subsequent claim against a lawyer for professional negligence resulting in the dismissal of the claim against the lawyer, and the setting aside of a costs order against an intervener in public interest litigation, and remitting the matter back to the Superior Court for determination on proper principles.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Volpe v. Wong-Tam, 2023 ONCA 680

Keywords:Torts, Defamation, Defences, Qualified Privilege, Civil Procedure, Anti-SLAPP, Statutory Immunity, Canadian Charter of Rights and Freedoms, s. 2(b), Constitution Act, 1867, s. 93, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Mondal v Kirkconnell, 2023 ONCA 523, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Reference re Bill 30, An Act to Amend the Education Act(Ont), [1987] 1 S.C.R. 1148, Levant v. DeMelle, 2022 ONCA 79

Pereira v. TYLT Technologies Inc. (TYLTGO), 2023 ONCA 682

Keywords: Contracts, Corporations, Oppression, Civil Procedure, Applications, Trial of Issues, Canada Business Corporations Act, R.S.C. 1985, c. C-44, s.241, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, Baylin Technologies Inc. v. Gelerman, 2021 ONCA 45, Menillo v. Intramodal Inc., 2016 SCC 51, Gordon Glaves Holdings Ltd. v. Care Corp. of Canada Ltd. (2000), 48 O.R. (3d) 737 (C.A.)

Greenspan v. Van Clieaf, 2023 ONCA 681

Keywords: Contracts, Real Property, Mortgages, Interpretation, Interest, Defences, Laches, Interest Act, R.S.C., 1985, c. I-15, s. 4, Housen v. Nikolaisen, 2002 SCC 33, Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1991), 3 O.R. (3d) 123 (C.A.), Solar Power Network Inc. v. ClearFlow Energy, 2018 ONCA 727, V.K. Mason Construction Ltd. v. Bank of Nova Scotia, [1985] 1 S.C.R. 271, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Elias Markets Ltd., Re, (2006) 274 D.L.R (4th) 166 (Ont. C.A.), Emmott v. Edmonds, 2010 ONSC 4185, 1842752 Ontario Inc. v. Fortress Wismer 3-2011 Ltd., 2020 ONCA 250, Trang v. Nguyen, 2011 ONSC 7076, aff'd 2012 ONCA 885, Jellett v. Wilkie (1896), 26 S.C.R. 282, Shewchuk v. Blackmont Capital Inc., 2016 ONCA 912, Canada Square Corporation Ltd. et al. v. VS Services Ltd. et al. (1981), 34 O.R. (2d) 250 (C.A.), Cohen v. Woodcliffe Corporation, 2022 ONSC 5599, McKenzie v. Walsh, [1920] 61 S.C.R. 312, Green v. Bank of Montreal, 1999 CanLII 821 (Ont. C.A.), M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3d) 641 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 63, K.(K.) v. G.(K.W.), 2008 ONCA 489, Anne Warner LaForest, Anger and Honsberger Law of Real Property, 3rd ed. (Thomson Reuters Canada Ltd.)

Windrift Adventures Inc. v. Chief Animal Welfare Inspector, 2023 ONCA 690

Keywords: Civil Procedure, Leave to Appeal, Consolidation, Rules of Civil Procedure, r. 6.01, Provincial Animal Welfare Services Act, 2019, S.O. 2019, c. 13, Li v Bank of Nova Scotia, 2023 ONSC 4235, CN v Holmes, 2011 ONSC 4837, Re Sault Dock Co Ltd v City of Sault Ste Marie [1973] 2 OR 479 (CA)

Lithium Royalty Corporation v. Orion Resource Partners, 2023 ONCA 697

Keywords: Contracts, Mining Rights, Royalties, Civil Procedure, Bifurcated Trials, Appeals, Stay Pending Appeal, Stay of Appeals, Rules of Civil Procedure, r. 5.04(2), Circuit World Corp v Lesperance (1997), 33 O.R. (3d) 674 (CA), Club Resorts Ltd. v Van Breda, 2012 SCC 17, MJ Jones Inc v Kingsway General Insurance Company et al, (2004) 72 O.R. (3d) 68, (CA), Sakab Saudi Holding Company v Al Jabri, 2021 ONCA 548, Yaiguaje v Chevron Corporation, 2014 ONCA 40, Essar Steel Algoma Inc, Re, 2016 ONCA 138, Longley v Canada, 2007 ONCA 149, Sodhi v Sodhi, (2002), 158 O.A.C. 83 (CA), Korea Data Systems (USA), Inc v Amazing Technologies Inc, 2012 ONCA 756, Toronto (City) v 1291547 Ontario Inc, (2001) 148 O.A.C. 212 (CA), Esquimalt & Nanaimo Railway Company v Dunlop, [1918] 3 W.W.R. 828 (BCCA), Popovich v Financial Investment Centre Inc., 2017 ONSC 1514, Dieffenbacher v Dieffenbacher IV, 2023 ONCA 189, Zafar v Saiyid, 2017 ONCA 919, RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, Fontaine v Canada, 2021 ONCA 313

Fehr v. Gribilas, 2023 ONCA 686

Keywords: Contracts, Interpretation, Releases, No Claims-Over Provisions, Professional Negligence, Lawyers, Torts, Negligence Misrepresentation, Civil Procedure, Third Party Claims, Summary Judgment, Stay of Proceedings, Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s 106, Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 61 O.R. (3d) 105 (C.A.), Ieradi v. Gordin, 2007 CanLII 48637 (Ont. S.C.), Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, Owen v. Zosky (2000), 14 C.P.C. (5th) 50 (Ont. C.A.), Searle v. McCabe, 2011 ONSC 6344 (Div. Ct.), Woodcliffe Corp. v. Rotenberg, 2005 CanLII 23675 (Ont. C.A.)

Costa v. Seneca College of Applied Arts and Technology, 2023 ONCA 673

Keywords: Civil Procedure, Interveners, Public Interest Litigation, Costs against Non-Parties, Abuse of Process, Maintenance, Friends of Toronto Public Cemeteries Inc. v. Ontario (Public Guardian and Trustee), 2020 ONCA 509, 1318847 Ontario Ltd v. Laval Tool & Mould Ltd., 2017 ONCA 184, Servatius v. Alberni School District No. 70, 2022 BCCA 421

Short Civil Decisions

OZ Optics Ltd. v. Evans, 2023 ONCA 677

Keywords: Contracts, Employment, Holdover Clauses, Civil Procedure, Summary Judgment

Dharmarajan v. York Condominium Corporation No. 308, 2023 ONCA 694

Keywords: Real Property, Condominiums, Compliance Orders, Condominium Act, 1998, S.O. 1998, c. 19, ss. 134 and 135

Aboutaleb-Maragheh v. Khanlari, 2023 ONCA 695

Keywords: Civil Procedure, Appeals, Summary Judgment, Orders, Variation

CIVIL DECISIONS

Volpe v. Wong-Tam, 2023 ONCA 680

[Fairburn A.C.J.O. MacPherson and Miller JJ.A.]

COUNSEL:

P. Slansky, for the appellants

K. A. McGivney, N. D. Kolos, and B. B. Fuhrmann, for the respondents KWT and PA

A. W. MacDonald and E. K. Romano, for the respondents Yahoo Media Group Inc. and EDF

J. Opolsky, T. R Lax and A. Oake, for the respondent MR

T. Gleason and A. Rauff, for the respondents NDP, MDD and ILP

Keywords: Torts, Defamation, Defences, Qualified Privilege, Civil Procedure, Anti-SLAPP, Statutory Immunity, Canadian Charter of Rights and Freedoms, s. 2(b), Constitution Act, 1867, s. 93, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Mondal v Kirkconnell, 2023 ONCA 523, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Reference re Bill 30, An Act to Amend the Education Act (Ont), [1987] 1 S.C.R. 1148, Levant v. DeMelle, 2022 ONCA 79

facts:

The appellant JV is the publisher of Corriere Canadese, a newspaper that has been sharply critical of some trustees of the Toronto Catholic District School Board (the "TCDSB") who promoted policies that JV believes undermine Roman Catholic teaching on sexuality and gender. In criticizing the policies of the TCDSB, JV engaged in personal attacks on the trustees who championed them. After JV used highly pejorative language to object to the TCDSB providing a link on its website to an LGBTQ2S+ resource website which itself linked to sexually explicit material, the respondent councillors - supported by the respondent trustees - took action to have the City of Toronto stop advertising in Corriere Canadese. The appellants sued the respondents for defamation and other causes of action...