Court Of Appeal Summaries (July 17 ' 21, 2023)

• Published date: 25 July 2023
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Charges, Mortgages, Indemnities, Insolvency/Bankruptcy, Trials & Appeals & Compensation, Civil Law
• 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 July 17, 2023.

In the most interesting decision of the week, Bunker v Veall, the appellants appealed an order declaring that a proposed payment, if made by the respondent executors to a Dubai law firm in partial satisfaction of a Dubai judgment, would violate s. 83.03(b) of the Criminal Code because the judgment was rendered in favour of a corporation with an alleged connection to a terrorist group. In allowing the appeal, the Court held that the court below erred in law in granting the declaration. The court had no jurisdiction to do so. Its declaration would not be binding on a prosecutor, who may have very different evidence to work with.

In YG Limited Partnership and YSL Residences Inc. (Re), the Court held that the limited partners of a limited partnership did not have standing to oppose claims made in bankruptcy. The limited partners had no direct economic interest in such claims and did not even control the debtor, which is controlled by the general partner. The Bankruptcy and Insolvency Act spells out who has standing, which is typically the claimant, the trustee in bankruptcy and the debtor.

In D.L. v. E.C. a mother made a dependant's support claim against the deceased's estate. The deceased believed he was the father of the mother's child, but it turned out that he was not (he never found out before he died). The lower court dismissed the application on the basis that the deceased had no "settled intention" to treat the child as his own. It also ordered substantial indemnity costs against the mother for having advanced a "false narrative". The Court dismissed the mother's main appeal related to the dependant support claim, but allowed the appeal on the issue of costs. There was no basis to have awarded costs against the mother on a substantial indemnity scale. The costs were therefore reduced to a partial indemnity scale.

Canada v Georgiou is technically a criminal law decision, but it relates to the forfeiture of property, so we thought it would be interesting to summarize for our mostly civil litigation readership. The moving party's son was convicted of serious fraud and securities violations in the US and was serving a lengthy prison sentence. The US government had a forfeiture order and sought to enforce it against his property here in Canada. The moving party sought leave to appeal the dismissal of her application seeking a declaration that she had a 100% interest in $9.3 million, and that the funds were not subject to the forfeiture order. In dismissing the moving party's motion for leave to appeal, the Court concluded that the moving party's proposed appeal fell within s.35 of the Mutual Legal Assistance in Criminal Matters Act, and that she could appeal only if she satisfied the test for leave in s. 35. The Court held that the moving party did not raise "a question of law alone" that would warrant leave to appeal. The decision below was fact-driven and the proposed appeal related to factual, not legal issues.

In Sebastiano v. Brunello Imports Inc., the court found an order that followed a summary judgment, which directed that funds paid into the court to the credit of the respondent be paid out to him, was an interlocutory order and thereby quashed the appeal for want of jurisdiction.

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

Sebastiano v. Brunello Imports Inc., 2023 ONCA 487

Keywords: Contracts, Real Property, Mortgages, Enforcement, Civil Procedure, Settlements, Appeals, Jurisdiction, Final or Interlocutory, Collateral Attack, Abuse of Process, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375

Canada (Attorney General) v. Georgiou, 2023 ONCA 495

Keywords: Criminal Law, Forfeiture of Property, Trust Property, Statutory Interpretation, Civil Procedure, Relief from Forfeiture, Appeals, Leave to Appeal, Evidence, The Rule in Browne v Dunn, Fresh Evidence, Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30, sections 9.3 and 9.4 and 35, Criminal Code, sections 2 and 462, Canada (Attorney General) v Georgiou, 2018 ONCA 320, Browne v Dunn (1893), 6 R. 67 (H.L.), Ontario (Provincial Police) v Assessment Direct Inc., 2017 ONCA 986, Dal Bianco v Deem Management Services Limited, 2020 ONCA 488, R v Viscomi, 2014 ONCA 765, Rizzo & Rizzo Shoes Ltd. (re), [1998] S.C.R. 27, National Corn Growers Assn v Canada (Import Tribunal), [1990] 2 S.C.R. 1324, United Kingdom v Ramsden (1996), Ont. C.A., R v Kachkar, 2014 ONCA 560, R v M.S., 2003 SCC 11, Amonite v A.P. Plasman Corp., 2014 ONSC 1705, Palmer v The Queen, [1980] 1 S.C.R. 759

YG Limited Partnership and YSL Residences Inc. (Re), 2023 ONCA 505

Keywords: Bankruptcy and Insolvency, Proposals, Limited Partnerships, Civil Procedure, Standing, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 37, 50(1) and 135(3-4), Limited Partnership Act, R.S.O. 1990, c. L. 16, Rules of Civil Procedure, Rule 37.14(1), Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 63 O.R. (3d) 769 (C.A.), Fontaine v. Canada (Attorney General), 2018 ONCA 1023, Kucor Construction & Developments & Associates v. Canada Life Assurance Co. (1999), 41 O.R. (3d) 577 (C.A.), Re McEwen, 2021 ONCA 566, Romspen Investments Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, Canada (A.G.) v. Rassell, 1999 ABCA 232, 237 A.R. 137

D.L. v. E.C., 2023 ONCA 494

Keywords: Wills and Estates, Intestacy, Succession, Pension, Dependants' Support, Settled Intention, Beneficiaries, Costs Awards, Substantial Indemnity Costs, Succession Law Reform Act, R.S.O. 1990, c. S.26, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, s. 87(8), Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), Chartier v. Chartier, [1999] 1 S.C.R. 242, Young v. Young, [1993] 4 S.C.R. 3, Iannarella v. Corbett, 2015 ONCA 110, 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42, Lewis v. Lewis, 2017 ONCA 690

Bunker v. Veall, 2023 ONCA 501

Keywords: Wills and Estates, Trusts, Estate Trustees, Advice and Direction, Illegality, Civil Procedure, Jurisdiction, Criminal Code, R.S.C. 1985, c. C-46, s. 83.03(b), Trustee Act, R.S.O. 1990, c. T.23, s. 60(1), Rules of Civil Procedure, r. 14.05(3), Bryton Capital Corp. GP Ltd v CIM Bayview Creek Inc., 2023 ONCA 363, London Health Science Centre v R.K. (1997), (Ont. S.C.), Bentley v Maplewood Seniors Care Society, 2014 BCSC 165, Transport North American Express Inc. v New Solutions Financial Corp., 2004 SCC 7, Gook Country Estates Ltd. v Quesnel (City of), 2008 BCCA 407

Short Civil Decisions

Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2023 ONCA 489

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Applications, Trial of Issues

Locke v. Murphy, 2023 ONCA 497

Keywords: Family Law, Civil Procedure, Summary Judgment

YG Limited Partnership and YSL Residences Inc. (Re), 2023 ONCA 504

Keywords: Bankruptcy and Insolvency, Civil Procedure, Standing, Motions, Prematurity, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3

Vangar Properties Inc. v. Belmar Roofing Inc., 2023 ONCA 506

Keywords: Contracts, Construction, Negligence

Grady v. Grady, 2023 ONCA 507

Keywords: Wills and Estates, Costs

CIVIL DECISIONS

Sebastiano v. Brunello Imports Inc., 2023 ONCA 487

[Miller, Paciocco and Coroza JJ.A.]

Counsel:

E. Bisceglia, for the appellants

S. Schwartz and D. Marr, for the respondent

Keywords: Contracts, Real Property, Mortgages, Enforcement, Civil Procedure, Settlements, Appeals, Jurisdiction, Final or Interlocutory, Collateral Attack, Abuse of Process, Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375

facts:

The appellants obtained a loan from the respondent, which was secured by a mortgage against the appellants' matrimonial home and a condominium. The appellants defaulted on the loan in November 2019, and in 2020 the mortgage matured. The respondent commenced an action for the debt, seeking possession of the matrimonial home and the condominium. The appellants did not file a statement of defence and on April 26, 2021, the respondent obtained default judgment granting possession of the matrimonial home.

Subsequently, the appellants sought court approval to sell the matrimonial home themselves. To facilitate the sale, they filed an application on June 21, 2021, for an order discharging the respondent's mortgage against the matrimonial home on terms, and seeking a declaration that the respondent had foreclosed on the condominium in satisfaction of the mortgage. The court refused to hear the matter on the basis that the application constituted a collateral attack on the default judgment and was therefore an abuse of process.

The appellants filed a motion to set aside the default judgment. The parties negotiated a consent order which ordered that the motion was abandoned. The consent order also provided that:

(1) the appellants were "permitted to issue an application for relief concerning [the condominium]";

(2) the matrimonial home could be sold pursuant to an agreement of purchase and sale dated June 29, 2021, and the home would remain in possession and control of the appellants until that sale;

(3) the net proceeds of sale would be "paid into Court to the credit of the within action until further court order";

(4) upon payment of the net sale proceeds into court, the respondent would discharge the mortgage against the matrimonial home; and

(5) the mortgage would remain a charge over the condominium and over the net proceeds of sale paid into court, "subject to further Order of the Court".

The appellants did not take any further steps to schedule the hearing of the application contemplated in the consent order. A year after the consent...