Court Of Appeal Summaries (June 19 ' 23, 2023)

• Published date: 27 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Court Procedure
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos and Ines Ferreira

Good evening,

Following are this week's summaries of the Court of Appeal for Ontario for the week of June 19, 2023.

Ontario v Gore Mutual Insurance Company involved a contest between whether a private insurer or a public fund would be responsible to compensate the victims of a snowmobile accident. The victims were riding an uninsured snowmobile that hit a tree. One died, the other suffered serious injuries. A second snowmobile that was insured that had been following them hit the same tree right after them. The second snowmobile was "involved" in the accident of the first, and that was enough to make the insurer of the second snowmobile liable, even though the second snowmobile did not collide with the first or cause the collision of the first snowmobile. Causation was not part of the test to determine whether the insurer was liable.

In Beardwood v Hamilton (City), the Court allowed the appeal from the dismissal of the claim against the City. The Court held that the trial judge committed a palpable and overriding error in holding that the City did not have a duty to repair the road and that the appellant was 50% negligent.

Walma v Georgian Bluffs (Township) was a dispute regarding whether the Township of Georgian Bluffs and the Crown have a legal responsibility to maintain a road which provided access to the respondent's property. The Court allowed the Crown's appeal on procedural grounds. Neither the applicant nor the Township had sought any relief against the Crown. The application judge therefore had no basis to make an order against the Crown. The Township's appeal was dismissed.

Madi v King involved a claim by a non-titled spouse to share in the increase in value of the matrimonial home arising after the date of separation. There is no right to a share of the increase unless a claim such as constructive trust is asserted. There was no basis to award a post-separation increase in value in this case, and the appeal was allowed on that issue.

Zhao v Xiao, dealt with retroactive child support, for which there was no basis in this case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Ontario (Government and Consumer Services) v Gore Mutual Insurance Company, 2023 ONCA 433

Keywords: Contracts, Insurance, MVA, Statutory Accident Benefits, Civil Procedure, Arbitration, Standard of Review, Error of Law, Insurance Act, R.S.O. 1990, c. I.8, s. 268(2), Fault Determination Rules, O. Reg. 668, Arbitration Act, 1991, S.O. 1991, c. 17, section 45, Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748.

Beardwood v Hamilton (City), 2023 ONCA 436

Keywords: Torts, MVA, Municipal Liability, Road Repair, Municipal Act, 2001, S.O. 2001, c. 25, ss. 44(3) and (4), Minimum Maintenance Standards for Municipal Highways, O Reg. 239/02, Fordham v Hutton Dunwich (Municipality), 2014 ONCA 891.

Walma v. Georgian Bluffs (Township), 2023 ONCA 431

Keywords: Real Property, Municipal Liability, Road Repair, Expropriation, Civil Procedure, Applications, Procedural Fairness, Limitations Act, 2002, SO 2002, c. 24 Sched. B., The Highway Act, S.U.C. 1810 (50 Geo. III), c. 1, s. 12., Municipal Act, R.S.O. 1990, c. M.45., Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Madi v. King, 2023 ONCA 443

Keywords: Family Law, Property, Equalization of Net Family Property, Matrimonial Home, Unjust Enrichment, Constructive Trust, Proprietary Estoppel, Child Support, Section 7 Expenses, Family Law Act, R.S.O. 1990, c. F.3, ss. 5(6), 5(7), Federal Child Support Guidelines, SOR/97-175, s. 7, 19(1), Martin v. Sansome, 2014 ONCA 14, Bakhsh v. Merdad, 2022 ONCA 1, McNamee v. McNamee, 2011 ONCA 533, Ward v. Ward, 2012 ONCA 462, Doef's Iron Works Ltd. v. Mortgage Corp. Canada Inc., 2004 CanLII 34620 (Ont. C.A.), Garland v. Consumers' Gas Co., 2004 SCC 25, Cowper-Smith v. Morgan, 2017 SCC 61, Spadacini-Kelava v. Kelava, 2020 ONSC 7907, Scholz v. Scholz, 2013 BCCA 309, Korman v. Korman, 2015 ONCA 578.

Zhao v. Xiao, 2023 ONCA 453

Keywords: Family Law, Child Support, Section 7 Expenses, Family Law Act, R.S.O. 1990 c. F.3., s. 37(2.3), Federal Child Support Guidelines, SOR/97-175, s. 7, S.(D.B.) v. G.(S.R.) 2006, 2 S.C.R. 231, Michel v. Graydon, 2020 SCC 24, Lesko v. Lesko, 2021 ONCA 369, Hickey v. Hickey, [1999] 2 S.C.R. 518.

Short Civil Decisions

Novosel v. Campisi, 2023 ONCA 439

Keywords: Contracts, Solicitor and Client, Contingency Fee Agreements, Solicitors Act, R.S.O. 1990, c. S.15, ss. 24 and 25, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), Raphael Partners v. Lam, 61 O.R. (3d) 417 (C.A.), Newell v. Sax, 2019 ONCA 455.

Peters v. SNC-Lavalin Group Inc., 2023 ONCA 438

Keywords: Costs, Partial Indemnity, Public Interest Litigation, Markowich v. Lundin Mining Corporation, 2023 ONCA 359.

CIVIL DECISIONS

Ontario (Government and Consumer Services) v Gore Mutual Insurance Company, 2023 ONCA 433

Lauwers, Huscroft and Zarnett JJ.A

Counsel:

A. Camporese, for the appellant

J. Friendly and D. Higginbotham, for the respondent

Keywords: Contracts, Insurance, MVA, Statutory Accident Benefits, Civil Procedure, Arbitration, Standard of Review, Error of Law, Insurance Act, R.S.O. 1990, c. I.8, s. 268(2), Fault Determination Rules, O. Reg. 668, Arbitration Act, 1991, S.O. 1991, c. 17, section 45, Canada (Director of Investigation and Research) v Southam Inc., [1997] 1 S.C.R. 748.

facts:

In 2013, the driver of an uninsured snowmobile was killed, and a passenger was injured, after that vehicle, and an insured snowmobile that was accompanying it, struck a tree at almost the same time. Statutory accident benefits were payable for the injured passenger and for the death of the driver. The issue that arose was who would pay the funds: the appellant (the private insurer of the insured snowmobile) or the publicly funded respondent.

Section 268(2) of the Insurance Act sets out rules for determining liability for statutory accident benefits. Under the rules, even though the deceased driver and injured passenger were riding on an uninsured snowmobile, the liability would fall on the appellant if the snowmobile it insured was properly considered to have been "involved in the incident from which the entitlement to statutory accident benefits arose". Otherwise, the liability would fall on the respondent.

At arbitration, an arbitrator held that the respondent was liable. In his view, the injuries to the deceased driver and passenger of the uninsured snowmobile would have occurred whether or not the appellant-insured vehicle had been following it.

The respondent appealed to the Superior Court and the judge reversed the Arbitrator's decision, holding that the Arbitrator had erred in law by applying the wrong legal test to the question. In his view, the Arbitrator erroneously injected a causation requirement into the analysis.

issues:

1. Did the appeal judge err in his interpretation of the Arbitrator's decision in determining that a question of law was involved, and in reversing the Arbitrator's decision once he concluded that the Arbitrator erred in law?
2. Did the appeal judge err in concluding that, in the absence of the causation requirement imported by the Arbitrator, the other factors were sufficient to meet the requirements of s 268(2)1(iii)?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that the appeal judge was correct to conclude that the Arbitrator made causation part of the test he was to apply, and that this legal error affected the result the Arbitrator reached.

The factors that are relevant to "involvement include: (i) whether there is contact between the vehicles; (ii) the physical proximity of...