COURT OF APPEAL SUMMARIES (May 22, 2023 ' May 26, 2023)

• Published date: 07 June 2023
• Subject Matter: Corporate/Commercial Law, Employment and HR, Insurance, Government, Public Sector, Litigation, Mediation & Arbitration, Real Estate and Construction, Energy and Natural Resources, Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy, Discrimination, Disability & Sexual Harassment, Mining, Insurance Laws and Products, Trials & Appeals & Compensation, Human Rights, Construction & Planning, Securities
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 22, 2023.

The Court released two companion decisions in Markowich v. Lundin Mining Corporation and Peters v. SNC-Lavalin Group Inc. which addressed the meaning of "material change" in the "business, operations or capital" under the secondary market liability provisions of the Securities Act. In both cases, the appellants alleged that the respondents failed to disclose "forthwith" a material change in the respondent reporting issuer's "business, operations or capital". The Court upheld the motion judge's interpretation of "change in business, operations or capital" in Peters and overturned the motion judge's interpretation in Markowich.

In Interhealth Canada Limited v. O'Keefe, the Court applied the test of breach of fiduciary duty in the context of diverting corporate opportunities, as set out in seminal Supreme Court decision in Can. Aero Service v. O'Malley. The Court agreed with the trial judge that the former CEO did not divert corporate opportunities.

In Imperial Oil Limited v. Haseeb, the Court set aside the decision of the Divisional Court and restored the decision of the Ontario Human Rights Tribunal. The Tribunal had found that Imperial Oil had discriminated against the appellant on the basis of citizenship when it withdrew an offer of employment as an engineer after he revealed that he was not a citizen or permanent resident and could only work on a temporary work visa.

In Davies v. Clarington (Municipality), the Court declined to order costs against third-party lenders who had made a loan to help fund a claim by a train passenger injured during a train accident in 1999. The plaintiff had sued for $50 million, had rejected a $500,000 offer, and only recovered $50,000 in damages after a 106-day trial. The amount of the loan had exceeded $400,000 by that point, as interest had been compounding at rates of almost 30% per year. $3.4 million in costs were awarded against the plaintiff, but were unrecoverable against him. The third-party lenders had no control over the conduct of the litigation and were not entitled to any part of any judgment obtained. Accordingly, the plaintiff was not a "person of straw" and there was therefore no basis for a costs award against the lenders.

In Jakab v Clean Harbors Canada, the appellants' contractual claim to insure a truck was dismissed at trial, as was their related negligent misrepresentation claim. While the appeal on the contractual claim was dismissed, the appeal from the dismissal of the negligent misrepresentation claim was allowed and remitted to a new trial. The amount at issue is under $65,000.

Other topics covered this week included the survival of a debt on a statutory construction trust claim following bankruptcy as a result of the debt arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity and intervenors.

Wishing everyone an enjoyable weekend.

Table of Contents

Civil Decisions

Imperial Oil Limited v. Haseeb, 2023 ONCA 364

Keywords: Constitutional Law, Human Rights, Discrimination, Employment Law, Immigration Law, Citizenship, Canadian Charter of Rights and Freedoms, s. 15, Human Rights Code, R.S.O. 1990, c. H.19, s. 5, s. 11(1), s. 16, s. 16(1), s. 16(2), s. 16(3), s. 34, s. 34(1), s. 45(2), Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, R. v. Perka, [1984] 2 S.C.R. 232, Fanshawe College of Applied Arts and Technology v. Au Optronics Corporation, 2016 ONCA 131, The Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9, Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553, Briggs v. Durham (Police Board), 2022 ONCA 823, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Shaw v. Phipps, 2012 ONCA 155, Moore v. British Columbia (Education), 2012 SCC 61, Peel Law Association v. Pieters, 2013 ONCA 396, Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39, Ontario v. Association of Midwives, 2020 ONSC 2839, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, Entrop v. Imperial Oil Limited (2000), 50 O.R. (3d) 18 (C.A.), Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536, Fraser v. Canada (Attorney General), 2020 SCC 28, British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, Stewart v. Elk Valley Coal Corp., 2017 SCC 30, Canada (Minister of Finance) v. Finlay, [1986] 2 S.C.R. 607, Bedford v. Canada, 2010 ONSC 4264, Carroll v. Toronto-Dominion Bank, 2021 ONCA 38, Landau v. Ontario (Attorney General), 2013 ONSC 6152, Washington [v. Student Federation of the University of Ottawa, 2010 HRTO 1976], (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 (C.A.), Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, Fawcett v. Fawcett, 2018 ONCA 150, Maurice v. Priel, [1989] 1 S.C.R. 1023, Thomas A. Cromwell, Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986), The Construction of Statutes, 7th ed. (Toronto: LexisNexis Canada, 2022)

Interhealth Canada Limited v. O'Keefe, 2023 ONCA 368

Keywords: Corporations, Directors, Breach of Fiduciary Duty, Misappropriation of Corporate Opportunities, Civil Procedure, Trials, Procedural Fairness, Evidence, Admissibility, Affidavits, Witnesses, Cross-examination, Time Limits, Recalling of Witnesses, Rules of Civil Procedure, r. 53.01(3), Can. Aero Service v. O'Malley, [1974] S.C.R. 592, R v. Samaniego, 2022 SCC 9, 412 C.C.C. (3d) 7, Griffi v. Lee, 2005 CanLII 48316 (ONSC), Southwind v. Canada, 2021 SCC 28

40 Days for Life v. Dietrich, 2023 ONCA 379

Keywords: Torts, Defamation, Anti-SLAPP, Online Harassment, Constitutional Law, Freedom of Expression, Civil Procedure, Intervenors, Friends of the Court, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, Rules of Civil Procedure, r. 13.02, Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), RWDSU Local 558 v. PepsiCola Canada Beverages (West) Ltd., 2002 SCC 8, Grant v. Torstar Corp., 2009 SCC 61, R. v. Doering, 2021 ONCA 924

Convoy Supply Ltd. v. Elite Construction (Windsor) Corp., 2023 ONCA 373

Keywords: Bankruptcy and Insolvency, Debts Surviving Bankruptcy, Fraud, Embezzlement, Misappropriation or Defalcation While Acting in a Fiduciary Capacity, Construction Law, Statutory Trust Claims, Civil Procedure, Orders, Default Judgments, Amending, Setting Aside, or Varying Orders, Deemed Admissions, Extrinsic Evidence, Admissibility, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 69.3, s. 69.4, s. 178(1)(d), Construction Lien Act, R.S.O. 1990, c. C.30, Construction Act, 1990, c. C.30, Rules of Civil Procedure, r. 59.06(2), Simone v. Daley (1999), 43 O.R. (3d) 511 (C.A.), Bibico Electric Inc v. Battlefield Electrical Services Inc., 2012 ONCA 676, aff'g, [2011] O.J. No. 6557 (S.C.), Yanic Dufresne Excavation Inc. v. Saint Joseph Developments Ltd., 2022 ONCA 556, Re: Ieluzzi (#2), 2012 ONSC 1474

Peters v. SNC-Lavalin Group Inc., 2023 ONCA 360

Keywords: Securities, Secondary Market Liability, Material Changes, Failure to Disclose, Negligence Misrepresentation, Civil Procedure, Class Proceedings, Leave to Commence Proceeding, Costs, Securities Act, R.S.O. 1990, c. S.5, Class Proceedings Act, 1992, S.O. 1992, Criminal Code, R.S.C. 1985, c. C-46, Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 121, s. 13, Markowich v. Lundin Mining Corporation, 2023 ONCA 359, NC-Lavalin Group Inc. v. Canada (Public Prosecution Service), 2019 FC 282, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Mask v. Silvercorp Metals Inc., 2016 ONCA 641, Kerr v. Danier Leather, 2007 SCC 44, Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, Cornish v. OSC, 2013 ONSC 1310, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), leave to appeal refused, [2007] S.C.C.A. No. 92, Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Das v. George Weston Limited, 2018 ONCA 1053, Markowich v. Lundin Mining Corporation, 2022 ONSC 81, Rex Diamond Mining Corporation et al., 2008 ONSEC 18, Coffin v Atlantic Power Corp., 2015 ONSC 3686, Paniccia v. MDC Partners Inc., 2018 ONSC 3470

Markowich v. Lundin Mining Corporation, 2023 ONCA 359

Keywords: Securities, Secondary Market Liability, Material Changes, Failure to Disclose, Negligence Misrepresentation, Civil Procedure, Class Proceedings, Leave to Commence Proceeding, Certification, Securities Act, R.S.O. 1990, c. S.5, Part XXIII.1, s. 1(1), s. 57, s. 75(1), s. 75(2), s. 138.1, s. 138.3(4), s. 138.8, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5, Housen v. Nikolaisen, 2002 SCC 33, Mask v. Silvercorp Metals Inc., 2016 ONCA 641, Kerr v. Danier Leather, 2007 SCC 44, Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, Cornish v. OSC, 2013 ONSC 1310 (Div. Ct.), Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Rahimi v. SouthGobi Resources Ltd., 2017 ONCA...