Ontario Court Of Appeal Summaries (June 26 – June 30, 2017)

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

In Tracy v. Iran (Information and Security), the Court of Appeal upheld Ontario default judgments obtained against the State of Iran, which enforced judgments obtained in the US against Iran under that country's long-arm jurisdiction statute, the Foreign Sovereign Immunities Act. That Act permits claims to be brought in the US against foreign governments for state terrorist activities occurring outside US soil. The incident in question was the 1983 US marine barracks bombing in Beirut, Lebanon. The Justice for Victims of Terrorism Act, passed by our Parliament in 2012, was found to effectively do away with state immunity as provided for in the State Immunity Act for claims relating to terrorist activities. The Court held that the US court had jurisdiction to grant the judgments (ie. there was a real and substantial connection between the US court and subject matter of the dispute) because the US statute specifically conferred jurisdiction. It will be interesting to see if the Supreme Court hears the case.

There were a couple of condominium law decisions of note. In CIBC Mortgages Inc. v. York Condominium Corporation No. 385, the Court of Appeal emphasized the need to maintain the appropriate balance between the rights of the condominium corporations and mortgagees in respect of the preservation of condo liens. The court rejected the condominium corporation's interpretation of section 134(5) of the Condominium Act, 1998 which, if accepted, would have essentially allowed the corporation to indefinetly extend the three month time period within which to perfect liens for unpaid maintenance fees and costs payable pursuant to compliance orders. In York Region Standard Condominium Corporation No. 1253 v. Hashemi, the Court of Appeal increased the costs payable to the successful condominium corporation in a condominium dispute. Section 134(5) of the Act was found to provide a greater entitlement to costs than the regular costs regime under Rule 57 of the Rules of Civil Procedure.

Other topics covered include class proceedings, labour law, employment law, family law, adverse possession, agreements of purchase and sale of land, and stays pending appeal.

Table of Contents:

Civil Decisions

Heffernan v. Knights of Columbus, 2017 ONCA 534

Keywords: Contracts, Settlements, Essential Terms

Pepper v. Brooker, 2017 ONCA 532

Keywords: Real Property, Adverse Possession, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Trespass

Weenen v. Biadi, 2017 ONCA 533

Keywords: Real Property, Nuisance, Strict Liability, Rylands v. Fletcher [1868] UKHL 1 (H.L.), (1868) L.R. 3 H.L. 330, Negligence, General Damages, Punitive Damages

Patel v. Harriott, 2017 ONCA 538

Keywords: Contracts, Agreements of Purchase and Sale of Land, Specific Performance

Cora Franchise Group Inc. v. Watters, 2017 ONCA 35

Keywords: Civil Procedure, Stay Pending Appeal, Supreme Court Act, R.S.C. 1985, c. S-26, s 65.1, Iroquois Falls Power Corp. v Ontario Electricity Financial Corp., 2016 ONCA 616, Contracts, Guarantees, Franchise Law, Franchise Agreements

Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540

Keywords: Employment Law, Wrongful Dismissal, Probationary Period, Mison v. Bank of Nova Scotia (1994), 6 C.C.E.L. (2d) 146 (Ont. Ct. (Gen. Div.)), Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Employment Standards Act, 2000, S.O. 2000, c. 41, Contracts, Interpretation, Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, 2010 O.A.C. 279

Tisi v. St. Amand, 2017 ONCA 539

Keywords: Civil Procedure, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Certificates of Pending Litigation, Contracts, Agreements of Purchase and Sale of Land, Specific Performance, Uniqueness

Velgakis v. Servings, 2017 ONCA 541

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Appropriateness of Proceedings, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, 407 ETR Concession Company Limited v. Day, 403 D.L.R. (4th) 485, Presidential MSH Corporation v. Marr Foster & Co. LL, 2017 ONCA 325

CIBC Mortgages Inc. v. York Condominium Corporation No. 385, 2017 ONCA 542

Keywords: Real Property, Condominiums, Compliance Orders, Common Expenses, Liens, Preservation, Condominium Act, 1998, S.O. 1998, c. 19, ss 85, 86, 134, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc., [2005] 253 D.L.R. (4th) 656, Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696, 377 D.L.R. (4th) 369

Barber v. Magee, 2017 ONCA 558

Keywords: Family Law, Presumption of Advancement, Gifts, Presumption of Resulting Trust, Pre-Judgment Interest

New Solutions Financial Corporation (Re), 2017 ONCA 553

Keywords: Bankruptcy and Insolvency, Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, Leave to Appeal

Paradigm Quest Inc. v. McInroy, 2017 ONCA 547

Keywords: Civil Procedure, Appeals, Interlocutory or Final Orders, Jurisdiction

Ravenda Homes Ltd. v. 1372708 Ontario Inc., 2017 ONCA 556

Keywords: Civil Procedure, Appeals, Security for Costs

Total Mechanical Systems Limited v. Sheet Metal Workers' International Association, Local 30, 2017 ONCA 559

Keywords: Labour Law, Collective Agreements, Voluntary Recognition Agreements, Bhaduria v. Toronto Board of Education, [1999] 173 D.L.R. (4th) 382 (Ont. C.A.), Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Rules of Civil Procedure, Rule 21

Yormak v. Arvai, 2017 ONCA 550

Keywords: Contracts, Solicitor and Client, Referral Fees, Rules of Professional Conduct, r. 2.08(7)

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2017 ONCA 555

Keywords: Civil Procedure, Class Proceedings, Appeals, Motions to Quash, Jurisdiction, Interlocutory or Final Orders, Pleadings, Amendments

Bakshi v. Global Credit & Collection Inc., 2017 ONCA 0548

Keywords: Contracts, Employment Law, Class Proceedings, Summary Judgment

Tracy v. Iran (Information and Security), 2017 ONCA 549

Keywords: Private International Law, Conflict of Laws, Enforcement of Foreign Judgments, Jurisdiction, Real and Substantial Connection, Beals v. Saldanha, 2003 SCC 72, [2003] 3 SCR 416, State Immunity, Justice for Victims of Terrorism Act, S.C. 2012, c. 1, s 4(5), State Immunity Act, R.S.C 1985, c. S-18, s. 6.1(2), 12

Vanier v. Vanier, 2017 ONCA 561

Keywords: Wills and Estates, Powers of Attorney for Property, Substitute Decisions Act, 1992, S.O. 1992, c. 30, New Issues on Appeal, Undue Influence, Kaiman v. Graham, 2009 ONCA 77

York Region Standard Condominium Corporation No. 1253 v. Hashemi, 2017 ONCA 557

Keywords: Real Property, Condominiums, Damages, Mitigation, Full Indemnity Costs, Condominium Act, 1998, S.O. 1998, c.19, s. 134(5), Rules of Civil Procedure, r. 57, Metropolitan Toronto Condominium Corp. No. 1385 v. Skyline Executive Properties Inc. (2005), 253 D.L.R. (4th) 656 (Ont. C.A), Boucher v. Public Accountants Council (Ontario) (2004),71 O.R. (3d) 291 (C.A.)

Civil Decisions

Heffernan v. Knights of Columbus, 2017 ONCA 534

[Epstein, Hourigan and Paciocco JJ.A.]

Counsel:

P. Morgan, for the appellant

J. Lefebvre, for the respondents

Keywords: Contracts, Settlements, Essential Terms

Facts:

The appellant sued the Ontario respondents and two related American parties as a consequence of his suspension from a charitable fraternal benefits organization. The parties then engaged in settlement discussions. The motion judge found that the appellant and the respondent entered into a binding agreement to resolve the litigation. However, the appellant claimed there was only an agreement in principle and that the parties did not finalize said agreement by the agreed upon deadline.

As such, the appellant is appealing the motion judge's decision.

Issues:

(1) Did the motion judge err in finding that the parties entered into a binding agreement to resolve the litigation?

Holding: Appeal dismissed.

Reasoning:

(1) No. There was ample evidence supporting a conclusion that the parties had reached a settlement agreement. The parties agreed upon the agreement's essential particulars, and the Ontario respondents provided settlement monies to their lawyer. Furthermore, the form of the release that the appellant's counsel requested to be included in any agreement had already been executed by some of the Ontario respondents before the appellant purported to terminate the agreement.

There was no deadline for completion of the terms of the settlement in any of the settlement documents, or the correspondence among counsel. The appellant could have insisted on its inclusion in the terms of the agreement. However, the appellant did not do this. Accordingly, there was no basis for the appellant to resile from the agreement based on a failure to meet this artificial deadline.

Pepper v. Brooker, 2017 ONCA 532

[Epstein, Benotto and Trotter JJ.A.]

Counsel:

B. Yellin, for the appellant

P. Quinlan, for the respondent

Keywords: Real Property, Adverse Possession, McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Trespass

Facts:

This appeal arises from a boundary dispute between two cottage owners. The appellant sued the respondents for trespass because he believed that they had built part of a road on his property. The respondents then claimed title under adverse possession. Both actions were tried together. The appellant's claim was dismissed, and the respondents succeeded in obtaining title to roughly 3,400 square feet of the appellant's property.

The appellant now appeals on the basis that the claim for adverse possession ought to have failed because the respondents did not prove that they had excluded him from the disputed lands. Furthermore, the appellant argues that the trial judge erred in dismissing his action and that costs should not have been awarded on a substantial indemnity basis.

The trial...