COURT OF APPEAL SUMMARIES (May 29, 2023 ' June 2, 2023)

• Published date: 07 June 2023
• Subject Matter: Finance and Banking, Insurance, Litigation, Mediation & Arbitration, Charges, Mortgages, Indemnities, Insurance Laws and Products, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Libel & Defamation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 29, 2023.

The Catalyst Capital Group Inc. v West Face Capital Inc. , 2023 ONCA 381 is a defamation and anti-SLAPP case involving multiple actions that have been going on for years and arise out of a dispute over the purchase of Wind mobile years ago. The Court upheld the dismissal of Catalyst's claims under the anti-SLAPP provisions of the Courts of Justice Act .

In Lewis v Lifetime Developments , the appellant sued for an unpaid real estate commission earned back 2012. The appeal from the motion judge's dismissal of the action as being out of time was dismissed.

In Burnham v. Co-operators General Insurance Company , a passenger of a stolen vehicle was injured, and claimed to have not known that the vehicle was stolen. The passenger made a claim against the owner's insurer under the uninsured motorist coverage part of the policy. The motion judge held that the owner's insurer had no liability to the passenger . The Court allowed the appeal and held that innocent passengers in a stolen vehicle are exempt from being excluded from coverage. Exclusions are to be interpreted and applied narrowly.The alternative to this outcome was that the passenger would have to be compensation out of the public Motor Vehicle Accident Claims Fund.

In Airport Business Park Inc. v. Huszti Holdings Inc., a vendor of land had a fixed period of time to remove an easement in favour of the City of Windsor from title to the property, failing which the purchaser would be entitled to an abatement of the purchase price. The vendor obtained and registered a court order removing the easement two days before the deadline. The City appealed (and ultimately lost). The purchaser still claimed the abatement, arguing that since the appeal was outstanding beyond the deadline, the vendor had not complied with the condition and the purchaser was entitled to the abatement. The motion judge found in favour of the vendor. The Divisional Court set aside that decision, finding in favour of the purchaser. The Court allowed the appeal and restored the motion judge's decision. The issue hinged on whether order could be considered final or not. Since there was no stay of the order and a subsequent sale of the property by the purchaser before the City's appeal was heard would have prejudiced the City's appeal rights, the Court felt that the order was final for the purpose of complying with the contractual condition to remove the easement by the time period specified. Determining whether an order is final depends on the extent of why the finality was being questioned, and it is not a bright line test.

In Russian Federation v Luxtona Limited , the Russian Federation appealed an international arbitral tribunal's ruling that it had the jurisdiction to hear a contractual dispute involving the Russian government. The Superior Court had dismissed the appeal and refused to permit Russia to file fresh evidence on the jurisdiction question. The Divisional Court set that order aside and found that the appeal to the court was a de novo hearing, as per international consensus. The Court agreed with the Divisional Court and dismissed the appeal.

Table of Contents

Civil Decisions

The Catalyst Capital Group Inc. v. West Face Capital Inc. , 2023 ONCA 381

Keywords: Torts, Defamation, Anti-SLAPP, Injurious Falsehood, Conspiracy, Unlawful Means Tort, Securities Law, Canadian Charter of Rights and Freedoms , s. 2(b), Courts of Justice Act , R.S.O. 1990, c. C. 43, subsections 137.1(3) and (4), and sections 6(1)(d) and 133(b), Libel and Slander Act, R.S.O. 1990, c. L. 12, 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, Bent v Platnick , 2020 SCC 23, Grant v. Torstar Corp. , 2009 SCC 61, Park Lawn Corporation v. Kahu Capital Partners Ltd. , 2023 ONCA 129, Guergis v. Novak , 2013 ONCA 449, Miguna v. Toronto (City) Police Services Board , [2004] O.J. No. 2455, Frank v. Legate , 2015 ONCA 631, WIC Radio Ltd. v. Simpson , 2008 SCC 40, Lewis v. The Daily Telegraph Ltd. , [1964] A.C. 234 (H.L.), Bangash v. Patel , 2022 ONCA 763, Hansman v. Neufeld , 2023 SCC 14, Fortress Real Developments Inc. v. Rabidoux , 2018 ONCA 686, Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation , 2021 ONCA 25, Platnick v. Bent , 2018 ONCA 687, Subway Franchise Systems of Canada Inc. v. Canadian Broadcasting Corporation , 2021 ONCA 26, Murano v. Bank of Montreal (1998), 41 O.R. (3d) 222 (C.A.), Veneruzzo v. Storey , 2018 ONCA 688, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Hamilton v. Open Window Bakery Ltd. , 2004 SCC 9, Duong v. NN Life Insurance Co. of Canada (2001), 141 O.A.C. 307, Levant v. DeMelle , 2022 ONCA 79, Hobbs v. Warner , 2021 BCCA 290

Burnham v. Co-operators General Insurance Company , 2023 ONCA 384

Keywords: Contracts, Insurance, Coverage, Automobile Insurance, Uninsured Motorist Coverage, Excluded Drivers, Driving Without Permission, Statutory Interpretation, Insurance Act , R.S.O. 1990, c. I.8, s. 265, Chilton v. Co-operators General Insurance Co. (1997), 32 O.R. (3d) 161 (C.A.)

Airport Business Park Inc. v. Huszti Holdings Inc. , 2023 ONCA 391

Keywords: Contracts, Interpretation, Real Property, Land Titles, Deferred Indefeasibility, Mirror Principle, Curtain Principle, Insurance Principle, Civil Procedure, Orders, Finality, Appeals, Conveyancing and Law of Property Act , R.S.O. 1970, c. 85, s. 62, Land Titles Act , R.S.O. 1990, c. L.5, ss. 78(4), 78(4.1), 86(1), 93, 99, 101(1) 101(6), 102, 105, 111, 118, 119, 128, O. Reg. 430/11 "Forms", Rules of Civil Procedure , r. 63, Smith et al. v. Tellier et al. (1974), 4 O.R. (2d) 154 (C.A.), Re West , 1928 CanLII 413 (ONSC), Leonard v. Wharton 1921 CanLII 441 (ON SC), Durrani v. Augier 2000 CanLII 22410 (ON SC), Re Regal Constellation Hotel (2004), O.R. (3d) (C.A.), Stanbarr Services Ltd. v. Metropolis Properties Inc. , 2018 ONCA 244, 2544176 Ontario Inc. v. 2394762 Ontario Inc. , 2022 ONCA 529, Martin v. 11037315 Canada Inc. , 2022 ONCA 322, Waimiha Sawmilling Co. v. Waione Timber Co. , [1926] A.C. 101 (P.C.), Lawrence v. Maple Trust Company , 2007 ONCA 74, United Trust Co. v. Dominion Stores Ltd. , [1977] 2 S.C.R. 915, Hydro Fuels Inc. v. Mid-Pacific Services Inc. , 2000 BCCA 608, R.A. & J. Family Investment Corp. v. Orzech (1999), 44 O.R. (3d) 385 (C.A.), Regal Constellation Hotel Ltd. , Re (2004), 71 O.R. (3d) 355 (C.A), Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc. , 2019 ONCA 508, Lamont on Real Estate Conveyancing , 2nd ed. (Thomson Reuters looseleaf, 1991)

Russian Federation v. Luxtona Limited , 2023 ONCA 393

Keywords: Contracts, Civil Procedure, International Arbitration, Jurisdiction, Competence-Competence Principle, Uniformity Principle, Fresh Evidence, Energy Charter Treaty , 17 December 1994, 2080 U.N.T.S. 95, Article 45(1), UNCITRAL Model Law on International Commercial Arbitration , Articles 16(1), 16(3) and 34(2), International Commercial Arbitration Act , 2017, S.O. 2017, c. 2, Sch. 5., Schedule 2, Palmer v. The Queen , [1980] 1 S.C.R. 759, Uber Technologies Inc. v. Heller , 2020 SCC 16, Dell Computers v. Union des consommateurs , 2007 SCC 34, Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan , [2010] UKSC 46, République Arabe d'Egypte c. Southern Pacific Properties Ltd , Cour de cassation Civ. 1re, 6 January 1987, No. 84-17.274, Insigma Technology Co. Ltd. v. Alstom Technology Ltd. , [2008] SGHC 134, aff'd [2009] SGCA 24, Electrosteel Castings Ltd v. Scan-Trans Shipping and Chartering Sdn Bhd , [2003] 2 All E.R. (Comm) 1064 (Q.B.), AQZ, Government of the Lao People's Democratic Republic v. Sanum Investments Ltd. , [2015] SGHC 15, Azov Shipping Co v. Baltic Shipping Co, S Co v. B Co , [2014] 6 HKC 421, AQZ v. ARA, [2015] SGHC 49, Sanum Investments Limited v. The Government of the Lao People's Democratic Republic , [2016] SGCA 57, Lin Tiger Plastering Pty Ltd. v. Platinum Construction (Vic) Pty Ltd , [2018] VSC 221, Mexico v. Cargill , 2011 ONCA 622, Nigel Blackaby, K.C., Constantine Partasides, K.C., & Alan Redfern, Redfern and Hunter on International Arbitration , 7th ed. (Oxford: Oxford University Press, 2023), Emmanuel Gaillard & John Savage, eds., Fouchard, Gaillard, Goldman on International Commercial Arbitration (The Hague: Kluwer Law International, 1999)

Lewis v. Lifetime Developments , 2023 ONCA 388

Keywords: Breach of Contract, Civil Procedure, Summary Judgment, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Thermal Exchange Services Inc. v. Metropolitan Toronto Condominium Corporation No. 1289 , 2022 ONCA 186

Short Civil Decisions

Maynard v. Johnson Controls Canada LP , 2023 ONCA 392

Keywords: Contracts, Employment, Wrongful Dismissal, Remedies, Damages, Payment in Lieu of Notice, Employment Standards Act, 2000 , S.O. 2000, c. 41

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CIVIL DECISIONS

Catalyst Capital Group Inc. v West Face Capital Inc. , 2023 ONCA 381

[Miller, Coroza and Copeland JJ.A.]

COUNSEL:

J.E. Callaghan, R.G. Dearden, B. Na, M. Karabus, and M.S. Romeo, D. Moore and K. Jones, for the appellant, Catalyst Capital Group Inc.
M. Milne-Smith, A. Carlson, and M. O'Sullivan, for the respondents, West Face Capital Inc. and G.B.
M.P. Tunley, for the respondents, Dow Jones and Company and J.M. and R.C.
L. Lung and R. Shoom, for respondents, ClaritySpring Inc. and N. A.
E. Bodnar and B. Campbell, for the respondent, K.B.
M. Wiffen, for the respondents, J. McFarlane and D.L.
A.D. Lascaris, P. Guy, and A. Seely, for the respondent, B.L.

Keywords: Torts, Defamation, Anti-SLAPP, Injurious Falsehood, Conspiracy, Unlawful Means Tort, Securities Law, Canadian Charter of Rights and Freedoms , s. 2(b), Courts of Justice Act , R.S.O. 1990, c. C. 43, subsections 137.1(3) and (4), and sections 6(1)(d) and 133(b), Libel and Slander Act, R.S.O. 1990, c. L. 12...