Court Of Appeal Summaries (June 5, 2023 ' June 9, 2023)

• Published date: 13 June 2023
• Subject Matter: Corporate/Commercial Law, Environment, Intellectual Property, Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Contracts and Commercial Law, Environmental Law, Patent, Constitutional & Administrative Law, Trials & Appeals & Compensation, Civil Law
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Following are this week's summaries of the Court of Appeal for Ontario for the week of June 5, 2023.

In Bhatnagar v. Cresco Labs Inc., the Court interpreted the Supreme Court's decision in C.M. Callow Inc. v. Zollinger. There is language in the Callow decision that suggests that a breach of the duty of honest performance of a contract leads to a presumption of lost opportunity damages. The Court determined that Callow does not stand for such a proposition, and damages have to be proved by the plaintiff in the normal course.

Other topics covered included a breach of contract case involving physicians and a hospital in respect of the operation of an offsite clinic, the interpretation of an option to purchase land in a lease following the environmental remediation of the property, interveners, setting aside administrative dismissals for delay in an MVA case.

Table of Contents

Civil Decisions

Justice Centre for Constitutional Freedoms v. Costa, 2023 ONCA 405

Keywords: Constitutional Law, Human Rights, Civil Procedure, Appeals, Interveners, Costs, Non-Parties, Public Interest Litigation, Rules of Civil Procedure, rr. 13.02, 57.01(1), Canadian Charter of Rights and Freedoms, ss. 2(a), 7, 8, 15, 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.), Childs v. Desormeaux (2003), 67 O.R. (3d) 385 (C.A.), Huang v. Fraser Hillary's Limited, 2018 ONCA 277, 40 Days for Life v. Dietrich, 2023 ONCA 379, British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, 2022 BCCA 354

Physicians' Dialysis Center Inc. v. Credit Valley Hospital, 2023 ONCA 402

Keywords: Contracts, Enforceability, Illegality, Breach of Contract, Breach of Fiduciary Duty, Unjust Enrichment, Torts, Conversion, Damages, Civil Procedure, Limitation Periods, Canada Health Act, R.S.C. 1985, c. C-6, Commitment to the Future of Medicare Act, 2004, S.O. 2004, c. 5, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 4 and 5, Moore v. Sweet, 2018 SCC 52, Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 S.C.R. 805, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Housen v. Nikolaisen, 2002 SCC 3, Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, Longo v. MacLaren Art Centre Inc., 2014 ONCA 526

Piedrahita v. Costin, 2023 ONCA 404

Keywords: Torts, Negligence, MVA, Civil Procedure, Orders, Administrative Dismissal for Delay, Setting Aside, Rules of Civil Procedure, r. 48.15 (repealed), Prescott v. Barbon, 2018 ONCA 504

Bhatnagar v. Cresco Labs Inc., 2023 ONCA 401

Keywords: Breach of Contract, Duty of Good Faith and Honest Performance, Damages, Expectation Damages, Disgorgement, Punitive Damages, Civil Procedure, Fresh Evidence, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Palmer v. The Queen, [1980] 1 S.C.R. 759., Katokakis v. William R. Waters Ltd. (2005), 194 O.A.C. 353 (C.A.), Barendregt v. Grebliunas, 2022 SCC 22, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Corner Brook (City) v. Bailey, 2021 SCC 29, Housen v. Nikolaisen, 2002 SCC 33

Horn Ventures International Inc. v. Xylem Canada LP, 2023 ONCA 408

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Leases, Options to Purchase, Environmental Protection Act, R.S.O. 1990, c. E.19, s. 95

Short Civil Decisions

Gefen v. Gefen, 2023 ONCA 406

Keywords: Wills and Estates, Guardianship, Power of Attorneys, Civil Procedure, Litigation Guardians, Appeals, Jurisdiction, Orders, Final or Interlocutory, Rules of Civil Procedure, rr. 1.04 and 77.04, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2) and 19, Substitute Decisions Act, 1992, S.O. 1992, c. 30., ss. 22 and 22(3), Gefen v. Gefen, 2023 ONCA 29, Gefen Estate v. Gefen, 2019 ONSC 6015, Saunders v. Gefen, 2019 ONSC 6017 aff'd, 2022 ONCA 174, Roelandt v. Roelandt, 2016 ONCA 858, Public Guardian and Trustee v. Gaumont, 2018 ONCA 731, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Berkelhammer v. Berkelhammer Estate, 2012 ONSC 6242

White v. Gauthier, 2023 ONCA 415

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, G. Hall, Canadian Contractual Interpretation Law, 4ed 2020, Ch. 1-2

Upper Canada Land Titles and Patent Research Initiative v. Niagara (Municipality), 2023 ONCA 416

Keywords: Real Property, Crown Patents, Municipal Law, Municipal Act, 2001, S.O. 2001, c. 25, ss. 14(1)(b) and 135

---

CIVIL DECISIONS

Justice Centre for Constitutional Freedoms v. Costa, 2023 ONCA 405

[Fairburn A.C.J.O. (Motion Judge)]

COUNSEL:

J. Roth, for the non-party (appellant)
J. Manson, for the applicants (respondents)
K. Marshal, for the respondent
S. Choudhry, for the proposed interveners

Keywords: Constitutional Law, Human Rights, Civil Procedure, Appeals, Interveners, Costs, Non-Parties, Public Interest Litigation, Rules of Civil Procedure, rr. 13.02, 57.01(1), Canadian Charter of Rights and Freedoms, ss. 2(a), 7, 8, 15, 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.), Childs v. Desormeaux (2003), 67 O.R. (3d) 385 (C.A.), Huang v. Fraser Hillary's Limited, 2018 ONCA 277, 40 Days for Life v. Dietrich, 2023 ONCA 379, British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, 2022 BCCA 354

FACTS:

The applicants, who were enrolled in the respondent school brought an application claiming that the respondent breached their rights pursuant to ss. 2(a), 7, 8, and 15 Canadian Charter of Rights and Freedoms. The breaches were said to arise from the respondent's policy requiring all students who attend the respondent's campus to be fully vaccinated for COVID-19. The appellant represented the applicants at a motion seeking an interlocutory injunction to prevent the respondent from enforcing its vaccination policy against the applicants. The motions judge dismissed the applicants' motion for the interlocutory injunction.

The applicants and respondent could not agree on costs. Based on the written submissions of the parties to the motion, the motion judge ordered approximately $156,000 in costs against the non-party, the appellant. The costs were ordered against the appellant specifically, not the applicants who were the parties on the motion for an injunction.

After reviewing the appellant's mandate and active and continuous promotion of the case on its website, including fundraising for the litigation, the motion judge concluded that it was appropriate to hold the appellant liable for costs given "it is riding, in this case, the twin horses of advocate and interested party". The motion judge then proceeded to apply the r. 57.01(1) factors to determine the quantum of costs owed by the appellant to the respondent.

The appellant appealed the non-party costs order against them. The proposed joint interveners sought leave to intervene in the appeal. The respondent opposed. The applicants and the appellant took no position.

ISSUES:

Will the proposed joint interveners make a useful contribution without doing an injustice to the parties?

HOLDING:

Motion granted.

REASONING:

The Court held that in determining a motion for leave to intervene, it is necessary to consider the nature of the case, the issues that arise in the case, and the contribution that the proposed joint interveners could make in resolving the issues before the court, without doing an injustice to the parties.

The Court acknowledged that while there is generally a stricter onus applied to interventions in private disputes, the "more onerous threshold may be softened somewhat where issues of public policy arise": Tsige; Childs v. Desormeaux (2003); Huang v. Fraser Hillary's Limited, 40 Days for Life v. Dietrich.

The Court noted that while the nature of this case was a private dispute, the issues raised involved broader public policy considerations, specifically, the appropriate legal standard for awarding non-party costs against non-profit and public interest organizations.

The proposed joint interveners argued that a) a public interest organization does not become a de facto party liable for costs simply because they fundraised; b) there is nothing wrong with a public interest organization fundraising, such that it would trigger a costs order; c) where a public interest organization becomes a de facto claimant, costs must be dealt with under the legal framework for public interest litigation; and d) the Court should incorporate elements of the recent decision in British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, into the existing legal framework for costs in public interest litigation in Ontario.

The Court held that the proposed joint interveners were well-recognized organizations who regularly engaged in public interest litigation. The Court disagreed with the respondent's argument that they had no expertise in the discrete subject-area of the appeal, and that their interest was rooted simply in self-preservation.

The Court acknowledged that while it may be that the proposed joint interveners were self-motivated in the broadest sense of the term, they had an institutional self-interest, one that arises from the public interest that...