Ontario Court Of Appeal Summaries (May 8 – 12, 2017)

Good Afternoon.

In a problematic and highly technical decision in Pennyfeather v. Timminco Limited, the Court of Appeal upheld the dismissal of a secondary securities market misrepresentation class action on the basis that it ran afoul of the hard three-year limitation period set out in s. 138.14 of the Securities Act. That limitation period commences from when the misrepresentation was first made and discoverability or continuing misrepresentations play no part in extending the limitation period. It was not sufficient for the claim to be issued to toll the limitation period (the claim was issued about a year after the misrepresentation). Leave to proceed with the claim had to be obtained before the end of the three years (this had been decided in Timminco #1 and confirmed in Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60). Alternatively, the application for leave had to at least have been brought within the three years, in which case, if leave were granted, it could be granted nunc pro tunc. Unfortunately, in this case, the leave motion had not been brought within three years, although that had been partly due to the fact that the court would not schedule it in time.

Congratulations to our very own Jason Mangano and Jennifer A. O'Dell, who were successful in Royal & Sun Alliance Insurance Company of Canada v Intact Insurance Company. In a contest between insurers as to responsibility for indemnifying victims of an accident, at issue was whether an endorsement of an automobile insurance policy that excludes coverage for a named driver is valid even though its form is not that pre-approved by the Superintendent of Financial Services, as required by s 227(1) of the Insurance Act. The Court held that the use of the unapproved form did not invalidate the exclusion from insurance coverage. As a result, RSA was responsible to indemnify under its uninsured motorist coverage.

Other substantive decisions this week included those pertaining to emergency orders under the Building Code Act, and reasonable apprehension of bias.

Have a great weekend.

Table of Contents:

Sutherland Lofts Inc. v. Peck, 2017 ONCA 368

Keywords: Municipal Law, Building Code Act, Orders to Remedy Unsafe Building

Pennyfeather v. Timminco Limited, 2017 ONCA 369

Keywords: Class Actions, Torts, Misrepresentation, Securities Law, Secondary Securities Market, Limitation Periods, Ontario Securities Act, R.S.O. 1990, c. S.5, Part XXIII.1, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 28, Timminco #1, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, Costs, Issue Estoppel, Henderson v. Henderson (1843), 67 E.R. 313

Royal & Sun Alliance Insurance Company of Canada v Intact Insurance Company, 2017 ONCA 381

Keywords: Insurance Law, Automobile Insurance, Excluded Driver Endorsements, Validity, Insurance Act, RSO 1990, c I.8, s 227(1), Unfair or Deceptive Acts or Practices, Financial Services Commission of Ontario Act, 1997, SO 1997 c 28, s 439, O Reg 7/00, Statutory Interpretation

Cannon v. Cemcor Apartments Inc., 2017 ONCA 378

Keywords: Torts, Negligence, Slip and Fall, Occupiers' Liability Act, R.S.O. 1990, c. O.2, Reasonable Apprehension of Bias

Azzeh v. Legendre, 2017 ONCA 385

Keywords: Motor Vehicle Accident, Notice to Municipality, s. 44(10) Municipal Act, 2001, Limitations Act, 2002, Plaintiff with a Disability, Rule 7.02(2) Rules of Civil Procedure, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, Pepper v. Zellers Inc. (2006), 83 O.R. (3d) 648 (C.A)

Moore v. Apollo Health & Beauty Care, 2017 ONCA 383

Keywords: Employment Law, Constructive Dismissal

For Civil Endorsements, click here.

For Criminal and Ontario Review Board Decisions, click here.

Civil Decisions:

Sutherland Lofts Inc. v. Peck, 2017 ONCA 368

[Weiler, Pardu and Roberts JJ.A.]

Counsel:

T.Halinski and D. Neligan, for the appellants

V. M'Garry, for the respondent

Keywords: Municipal Law, Building Code Act, Orders to Remedy Unsafe Building

Facts:

Sutherland Lofts Inc. (the "respondent") owned the property located at 606-610 Talbot Street in St. Thomas (the "Building"). The Building was over 100 years old and was purchased by the respondent in 2003 with the plan of renovating it into a combination of commercial and residential apartments. This plan never progressed and the Building sat vacant from at least the date it was purchased by the respondent. Since that time, the condition of the Building deteriorated.

In June 2015, a significant section of the Building's second floor collapsed and on September 11, 2015, the roof partially collapsed. The Corporation of the City of St. Thomas ("the City") engaged an engineering firm to inspect the Building and provide a written report with respect to its structural condition. Chris Peck, the City's Chief Building Official ("CBO") issued and served on the respondent an Order Prohibiting Occupancy dated September 15, 2015. In response to the engineering report, also dated September 15, 2015, the CBO issued and served on the respondent an Emergency Order the following day on September 16, 2015, to which the engineering report was attached.

Having determined that the immediate danger of collapse had been alleviated by the respondent's temporary shoring and hoarding work, on November 5, 2015, the CBO lifted the Emergency Order and replaced it with an Order of the Property Standards Officer, which detailed additional work to be completed. On December 3, 2015, the CBO issued the Order to Remedy Unsafe Building, which is the subject of this appeal.

The respondent did not comply with the orders or complete any additional remedial work. It did not appeal any of the orders but brought an application in March 2016 to have the Order to Remedy declared invalid, and to obtain interim injunctive relief, as well as a declaration that the Building was not unsafe. In the alternative, the respondent requested leave to file a late appeal of the November 5, 2015 Order of the Property Standards Officer and the December 3, 2015 Order to Remedy.

The application judge determined that the Order to Remedy was null, void and inoperative for the following reasons:

(i) It did not comply with the Building Code Act ("the Act") because it was only served on the owner. The application judge concluded that the Order to Remedy should have also been served on the respondent's property manager and local supervisory agent, as "such other persons affected" by the Order; and

(ii) It lacked the specificity required under the Act.

The application judge concluded that, given her ruling with respect to the invalidity of the Order to Remedy, it was not necessary for her deal with the issue of injunctive relief. Although not stated, presumably also because of her ruling, the application judge did not determine the factual issue of the Building's structural integrity.

The City and Chris Peck (the "appellants") appeal the application judge's order declaring the Order to Remedy Unsafe Building, issued on December 3, 2015 ("the Order to Remedy"), by the CBO, null, void and inoperative. The respondent brings a cross-appeal to obtain an interim injunction preventing the appellants from demolishing the Building, and for a declaratory order that the Building is not "unsafe" as defined in the Act. The application judge declined to deal with these claimed remedies.

Issue:

(1) Were the appeal and cross-appeal moot?

(2) Did the application judge err by determining that the Order to Remedy was null, void and inoperative?

(3) Did the application judge err by determining that the Order to Remedy lacked specificity contrary to the Act?

(4) Should the respondent be granted injunctive and declarative relief?

Holding:

The appeal was allowed. The cross-appeal was dismissed. The issues of whether an interim injunction should be granted, and whether the Building was unsafe, were remitted for hearing before another application judge.

Reasoning:

(1) No. The issues of whether the Order to Remedy lacked specificity and the availability of an interim injunction to prevent demolition, did not raise a hypothetical or abstract question but were still live issues between the parties. The Court of Appeal's decision would therefore have a practical effect on the parties.

(2) Yes. First, the application judge erroneously declared that the Order to Remedy was null, void and inoperative based on allegedly defective service on the respondent. In the Court's view, the appellants' service of the Order to Remedy by registered mail on the respondent as owner of the Building, at the respondent's last known address, complied with the provisions of ss. 15.9(5) and 27(1) of the Act. It was within the CBO's discretion as to whether the respondent's property manager and local supervisory agent should be served with the Order to Remedy.

Further, the Court agreed with the appellants' submission that the property manager and local supervisory agent were not in possession of the Building, but were at best the respondent's agents for service. The Building was vacant and there was an order that prohibited occupation. Only the owner was in possession of the Building. As a result, the CBO was not required to serve any other person. There is no basis to suggest that the CBO acted unreasonably in the exercise of his discretion not to serve the respondent's property manager and local supervisory agent. In any event, delayed service does not invalidate the Order to Remedy.

(3) Yes. The application judge did not provide any reasons or analysis for this conclusion. She also mistakenly referred to s. 15.2(2) of the Act, which prescribes the contents of a Property Standards Order, rather than to s. 15.9 (4), which prescribes the contents of an Order to Remedy Unsafe Building. Unfortunately, her lack of reasons and analysis did not permit the court to conduct a meaningful appellate review. As a result, no deference is owed to her decision and the Court was required...