Ontario Court Of Appeal Summaries (September 25 – September 29, 2017)

Good evening.

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

In perhaps the final round in the Yaiguaje v. Chevron Corporation case, the Ecuadorian plaintiffs, who hold a judgment of approximately $9.5 billion from an Ecuadorian court against Chevron Corporation, appeal from the dismissal, by way of summary judgment, of their enforcement proceedings against Chevon Canada, a seven degree removed subsidiary of Chevron Corporation. Chevron Corporation and Chevron Canada successfully moved for security for costs of the appeal, including the costs of the motion for summary judgment in the court below, of over $1 million. It will be interesting to see whether this spells the end of this case or whether the security is posted.

In Keatley Surveying Ltd. v. Teranet Inc., the Court of Appeal upheld the dismissal of the class action by surveyors in Ontario, who alleged that Teranet Inc. infringed their copyright by digitizing, storing, and copying plans of survey created by the surveyors and registered or deposited in the provincial registry offices. The Court affirmed the lower court decision by holding that the province owns the copyright in the plans of survey deposited with the registry offices as a result of the combined effect of section 12 of the Copyright Act and the provincial legislation governing the land registry system. There was therefore no copyright breach arising from the fact that users of Teranet can access and make copies of plans of survey.

The Court released two decisions dealing with Rule 21.01. In Ridel v. Goldberg, the Court held that since discoverability issues generally involve questions of mixed fact and law, Rule 21.01(1)(a) will rarely be the appropriate avenue for determining limitation period issues. In Harris v. Ontario (Community Safety & Correctional Services), the Court held that the claim did not plead the issue that was decided on the Rule 21.01 motion. In this case, the issue decided was whether claims for legal expenses incurred in connection with a coroner's inquest are recoverable at law in a wrongful death action brought pursuant to s. 61(1) of the Family Law Act. The court held that the motion judge should not have answered the question (the judge held such costs were recoverable as damages), given that such damages were not pleaded in the statement of claim.

Finally, Justice Brown, in Chambers, was uncertain about his jurisdiction to grant a charging order to secure solicitor's fees with respect to not only work performed on the appeal before the Court, but with respect to the work performed on the proceedings before the Superior Court. His Honour adjourned the motion to a panel of the Court of Appeal, which will soon decide the question.

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Have a great weekend.

Table of Contents:

Civil Decisions

Ridel v Goldberg, 2017 ONCA 739

Keywords: Civil Procedure, Determination of a Question of Law, Limitation Periods, Rules of Civil Procedure, R. 21.01(1)(a), Salewski v. Lalonde, 2017 ONCA 515, Bankruptcy and Insolvency, Property of Bankrupt, Causes of Action, Assignments, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 38

Yaiguaje v Chevron Corporation, 2017 ONCA 741

Keywords: Civil Procedure, Appeals, Security for Costs, Judgments, Enforcement, Execution Act, Corporations, Piercing Corporate Veil, Chevron Corp v. Yaiguaje, 2015 SCC 42, Belokon v. Kyrgz Republic, 2016 ONSC 4506, Shoppers Drug Mart Inc. v. 6470360, 2014 ONCA 85, 642947 Ontario Ltd. v. Fleischer, (2001), 56 O.R. (3d) 417 (C.A.)

Highland Shores, Children's Aid Society v C.S.D., 2017 ONCA 743

Keywords: Family Law, Crown Wardship, Civil Procedure, Summary Judgment, Appeals, Jurisdiction, Interlocutory Order, Final Order

Harris v Ontario (Community Safety & Correctional Services), 2017 ONCA 750

Keywords: Civil Procedure, Determination of Question of Law, Rules of Civil Procedure, Rule 21.01(1)(a), Torts, Negligence, Wrongful Death, Family Law Act, RSO 1990, c. F.3., ss 61(1), Damages, Legal Expenses, Coroner's Inquests

Keatley Surveying Ltd. v Teranet Inc., 2017 ONCA 748

Keywords: Intellectual Property Law, Copyright, Class Actions, Copyright Act, RSC 1985 c. C-42, s. 12, Electronic Land Registration Services Act, S.O. 2010, c. 1, the Registry Act, R.S.O. 1990, c. R.20; Land Titles Act; Surveyors Act, RSO 1990, c. ss. 29 and 30

Weenen v Biadi, 2017 ONCA 738

Keywords: Solicitor and Client, Legal Fees, Charging Orders, Jurisdiction, Solicitors Act, ss. 34(1), Courts of Justice Act, ss. 7(4), Sealing Orders

For Civil Endorsements, click here.

For Capacity and Consent Board Decisions, click here.

For Criminal Decisions, click here.

Civil Decisions

Ridel v. Goldberg, 2017 ONCA 739

[Sharpe, Rouleau and van Rensburg JJ.A.]

Counsel:

P Anisman, for the appellants

N Holmberg, for the respondent

Keywords: Civil Procedure, Determination of a Question of Law, Limitation Periods, Rules of Civil Procedure, R. 21.01(1)(a), Salewski v. Lalonde, 2017 ONCA 515, Bankruptcy and Insolvency, Property of Bankrupt, Causes of Action, Assignments, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 38

Facts:

This action was commenced more than two years after the Ridels (the appellants) obtained a trial judgment against e3m Investments Inc. for negligence, breach of contract and breach of fiduciary duty in relation to their investment accounts, but within two years of the dismissal of e3m's appeal from that judgment. In the action against e3m, the trial judge found that the respondent Robert Goldberg, the president, CEO and sole director of e3m, had abdicated his responsibility to supervise the employee who handled the appellants' accounts. After e3m's appeal was dismissed, e3m made an assignment in bankruptcy. The appellants then obtained an order pursuant to s. 38 of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, authorizing the assignment to them of the trustee's cause of action for damages incurred by e3m as a result of the respondent's breach of duties of care and supervision. They then commenced this action.

The focus of the appellants' argument before the motion judge related to the relevance of e3m's appeal to the calculation of the limitation period. They argued that until the appeal was decided, it would not have been appropriate for them to bring this action. Before the Court of Appeal however, the appellants shifted ground and argued that it could not be said that e3m could or should have considered an action against Goldberg, e3m's own directing mind, until after e3m's bankruptcy.

Issue:

Did the motion judge err in ruling on a Rule 21.01(1)(a) motion that the action was barred by the two-year limitation period?

Holding: Appeal allowed.

Reasoning:

Yes. The Court of Appeal was of the view that it was not appropriate for the court to rule on the issues raised by the parties on the limited record that was before it. This was a Rule 21.01(1)(a) motion for which the court only had the pleadings before it. There was no evidence before the court concerning what has become the main focus of the appellants' submission, namely, the relationship between e3m and Goldberg and the control he is alleged to have exercised over e3m in relation to the claim advanced by the appellants.

In Salewski v. Lalonde, 2017 ONCA 515, the Court of Appeal observed, at para. 45, that as the discoverability issue is one of mixed fact and law, there may well be no circumstance "in which a limitation issue under the Act can properly be determined under Rule 21.01(1)(a) unless pleadings are closed and it is clear that the facts are undisputed." The Court of Appeal was of the view that a more complete record would be required to permit the court to determine the issues raised by the parties on this appeal. Therefore, this order does not purport to determine the limitation period issue. Instead, that issue may be determined in the normal course, and on a proper factual basis, in these proceedings.

Yaiguaje v. Chevron Corporation, 2017 ONCA 741

[Epstein J.A. (in Chambers)]

Counsel:

Suzy Kauffman, for the moving party Chevron Canada Limited on M47811

Larry P. Lowenstein and Laura Fric, for the moving party Chevron Corporation on M47813

Paul M. Michell, for Chevron Canada Capital Company

Alan J. Lenczner, Q.C., Brendan F. Morrison, Kirk M. Baert, Celeste Poltak and Garth Myers, for the responding parties

Keywords: Civil Procedure, Appeals, Security for Costs, Judgments, Enforcement...