Ontario Court Of Appeal Summaries (April 13 – 17, 2015)

Hello everyone. Below are summaries of this week's OCA civil decisions (non-criminal). Topics covered include certification of a copyright class action brought by land surveyors against Teranet Inc for providing access to their plans, reasonable notice of termination of employment, stay of proceedings in both the creditor-debtor and immigration law context, and franchise law.

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Siskinds LLP v. Canadian Imperial Bank of Commerce, 2015 ONCA 265 [Hoy A.C.J.O., Cronk and Watt JJ.A.] Counsel: E.A. Cherniak and J. Squire, for the plaintiff (appellant) P.H. Le Vay and J. Safayeni, for the defendant (respondent)

Keywords: Endorsement, Contract Interpretation, Good Faith, Bhasin v Hrynew

Facts: The appellant, Siskinds LLP, performed collection work on behalf of the respondent, Canadian Imperial Bank of Commerce ("CIBC") pursuant to a written agreement of the parties. When CIBC terminated the agreement, the parties disagreed about the interpretation of a provision that allowed Siskinds LLP to invoice CIBC "for Services performed up to the date of termination of the Agreement."

The motion judge agreed with CIBC's interpretation and granted its cross-motion for summary judgment.

Holding: Appeal dismissed.

Reasoning:

Deference is owed to the motion judge's interpretation of the agreement, and there was no palpable or overriding error. The motion judge considered and properly applied the applicable principles of contract interpretation.

When the entirety of his reasons are considered, it is apparent that the motion judge appreciated and took into account factors related to the work/commission payment profile, and simply concluded that they were not controlling of the meaning to be accorded to the words used by the parties in the agreement. The motion judge held, and the Court agreed, that the appellant's proposed interpretation would require "a radical change in the methodology for calculating [the appellant's compensation]" that was not contemplated by the agreement, and was inconsistent with the historical commission structure and pattern of dealings between the parties.

Lastly, Bhasin v. Hrynew, 2014 SCC 71, which recognized a general duty of honesty in contractual performance, does not affect the interpretation of the provision at issue.

United States v. Huang, 2015 ONCA 266 [Strathy C.J.O., Doherty and Gillese JJ.A.] Counsel: R. Pillay, for the appellant N. Dennison, for the respondent

Keywords: Extradition Law, Expert Opinion, Foreign Law

Facts: Kai Guo Huang (the "appellant") appeals an order committing him for extradition to the United States to stand trial for the offences of murder and interfering with a dead human body.

The appellant is accused of committing murder in the United States in 1998. A few days after the murder was committed, the appellant's sister and brother-in-law (the "Witnesses") allegedly gave police statements implicating the appellant in the murder. The Witnesses' evidence is essential to the American murder prosecution. However, the Witnesses have since sworn affidavits denying that they made the police statements. They have returned to China and have no intention of testifying against the appellant.

The appellant argued that he should not be extradited because the crucial evidence of the Witnesses is not available for his murder prosecution in the United States. The appellant sought to introduce the expert opinion of a law professor from China who stated that under Chinese law, authorities do not have the power to compel the Witnesses to testify in the American proceedings. The extradition judge however, held that it was not the role of an extradition judge to conduct an inquiry into foreign law. She found that the Witnesses' evidence was available for the murder prosecution and ordered the appellant's committal.

On appeal, the appellant argues that the extradition judge erred in failing to admit the expert opinion.

Holding: Appeal dismissed.

Reasoning: It is not the role of the extradition judge to determine issues of foreign law, absent exceptional circumstances.

The court found that it is beyond the scope of the extradition hearing to determine the extent to which Chinese authorities, under local Chinese law, could compel the Witnesses to testify in the American prosecution. Accordingly, the extradition judge made no error in refusing to conduct such an inquiry.

Caffé Demetre Franchising Corp v 2249027 Ontario Inc., 2015 ONCA 258 [Doherty, Epstein and Tulloch JJ.A.] Counsel: D. S. Altshuller, for the appellants J. H. McNair, for the respondents

Keywords: Franchise Law, Summary Judgment, Rescission, Arthur Wishart Act (Franchise Disclosure), 2000, ss. 5, 6(1), 6(2), Disclosure, Material Fact, Stark and Material Deficiency

Facts:

The respondent, Caffé Demetre Franchising Corp., was the franchisor of a franchise specializing in freshly made desserts and ice cream. The appellant, 2249027 Ontario Inc., purchased a Caffé Demetre franchise.

Approximately a year after the franchise was purchased in 2011, difficulties arose between the parties that led the franchisor to sue the franchisees claiming, among other things, a declaration that the franchise agreement was at an end and damages for breach of contract. The franchisees had failed to perform repairs requested by the franchisor and failed to provide information explaining why customer orders at their location were cancelled at point of sale roughly three times more often than at other outlets. Furthermore, the franchisees had failed to improve the appearance of the location, and failed to provide financial statements and tax returns, in breach of their obligations under the franchise agreement.

The franchisees counterclaimed, adding the principal of the franchisor to the action, and claiming rescission of the franchise agreement on the basis of alleged deficiencies in the disclosure document the franchisor had provided at the time of purchase of the franchise.

The motion judge granted partial summary judgment to the franchisor and dismissed the franchisees' counterclaim for rescission. He found that three of the four alleged disclosure omissions relied upon by the franchisees were not disclosure deficiencies at all. With respect to the fourth alleged omission - the non-disclosure of ongoing litigation commenced by the franchisor against a competing business - the motion judge concluded that while the franchisor should have disclosed the ongoing litigation in which it was involved, this omission failed to "come anywhere close" to the type of deficiency that entitled the franchisees to rescind the franchise...