Ontario Court Of Appeal Summaries (February 12 – February 16)

Good Evening,

Below are this week's Court of Appeal summaries. Topics covered this week included family law (equalization of pension and child abduction), slip and falls, false arrest and wrongful imprisonment, commercial tenancies (whether changing locks constitutes termination of lease leading to wrongful distraint), civil procedure in the bankruptcy context (leave to an undischarged bankrupt to commence a third party claim) and breach of contract (in the context of a distribution arrangement).

I would like to remind all our readers that you are invited to attend the Top Appeals of 2017 CLE that my partner, Lea Nebel and I will be co-chairing with Justice Epstein of the Court of Appeal. We already have almost 50 people registered to attend in person and online, and hope you can join us!

The CLE has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street to take place on Monday, February 26, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda for further details and to register.

There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case will be heard by the Supreme Court in the coming months. Counsel on that matter, David M. Smith and Jeremy Opolsky, have agreed to participate in our panel discussion.

The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the "appropriate means" analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for the parties on that matter, Allan Sternberg, Daniella Murynka and Michael Girard, will be our panelists. The law in this area is continuing to evolve.

The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has certainly received the attention of the plaintiffs' personal injury bar and the media and has, no doubt, been a catalyst behind the Law Society's efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. Counsel for the class plaintiffs, Peter Waldmann, will be joined on our panel by Bevin Shores and Audrey P. Ramsay, who are involved with the OBA and the Law Society working groups looking at this issue.

I hope everyone enjoys the Family Day long weekend!

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Civil Decisions

Lakehead Roofing & Metal Cladding Ltd. v. 1304808 Ontario Inc., 2018 ONCA 129

[Feldman, MacPherson and Huscroft JJ.A.]

Counsel:

D B Shanks and R Carlino, for the appellant

R W Johansen, for the respondent

Keywords: Real Property, Commercial Tenancies, Distraint, Commercial Tenancies Act, R.S.O. 1990, c. L.7, Rays Outfitters v. Lixo Investments, 2014 ONSC 3884

Facts:

The appellant was a commercial tenant in Thunder Bay, Ontario. The respondent was the landlord. The tenant sought a declaration under the Commercial Tenancies Act, R.S.O. 1990, c. L.7 (the "Act"), that: (i) the landlord had wrongfully and illegally distrained assets and equipment of the tenant after terminating the tenancy by changing the locks; or (ii) the distraint was excessive.

The tenant's position was that its application could be granted based on the application record. The landlord's position was that a trial was required to resolve one or more of the factual issues. The application judge found that: (i) terminating the lease was neither the intent of the landlord nor the effect of changing the locks, and therefore the lease was not terminated before the distraint; and (ii) a trial was necessary to determine whether the distraint was excessive, including the amount of any rent that remained owing, and the value of the distrained equipment. He also found that proof of any tenant's damages also required a trial.

The appellant submitted that the application judge erred in concluding that: (i) the landlord's notices and actions did not have the effect in law of terminating the lease before the distraint; and (ii) a trial was needed to find excessive distraint, when the values attributed to the distrained equipment by both parties exceeded the rent that remained owing.

Issues:

Did the application judge err in finding that the lease had not been terminated and therefore that the distraint was legal? Did the application judge err in concluding that there was insufficient evidence to find that the distraint was excessive? Holding:

Appeal dismissed.

Reasoning:

The appellant submitted that, pursuant to Rays Outfitters v. Lixo Investments, 2014 ONSC 3884, the test to determine whether the changing of the locks terminated the lease is whether the intended and actual effect of changing the locks was to exclude the tenant from the premises, thereby terminating the lease. It argues that in his reasons, the application judge looked only at the written notice, which said that access would be given to the tenant on request, and did not consider or give effect to evidence that in fact the landlord denied access to the tenant on a number of occasions. The Court of Appeal rejected this submission. Both sides submitted affidavit evidence regarding the changing of the locks. While it is true that the application judge did not address the alleged denial of access specifically, the Court of Appeal found that it could be inferred that he did not consider it significant enough to have the effect in law of terminating the lease. Therefore this finding was reasonable. The appellant submitted that both its and the respondent's estimates of the value of the chattels and equipment being held in distress exceed the value of the rent arrears that remain outstanding. The application judge found the record unclear on the issue of the amount of rent in arrears, or even whether there was any rent in arrears. He also was well aware of the estimated values ascribed by the parties to the equipment and chattels, but because they were merely estimates, he was not prepared to make findings without proper evidence of value. He concluded that proof of damages by the tenant also required a trial. The Court of Appeal found that the application judge could not be faulted for his disposition. He was able to make a determination on the record before him "in a summary way" on the first issue, whether the landlord had terminated the lease by changing the locks. However, the parties did not present sufficient evidence for him to determine the amount of rent that remained outstanding, if any, the value of the goods and equipment that had been distrained, and any damages suffered by the tenant if the distraint was excessive. Luckevich v. Ivany, 2018 ONCA 144

[Doherty, Paciocco and Nordheimer JJ.A.]

Counsel:

Michael Katzman, for the appellant

Howard W. Reininger, for the respondents

Tim Duncan, for the Trustee in Bankruptcy

Keywords: Bankruptcy and Insolvency, Civil Procedure, Third Party Claims, Bankruptcy and Insolvency Act, ss. 2, 31, 69, 71 & 178

Facts:

In April of 2016, Howard Ivany ("the appellant") was examined for discovery. The appellant says that during the examination it became clear to him, for the first time, that the respondents were seeking damages against him for actions or omissions of Reiber.

The appellant wished to commence a third party claim in each action against Reiber for contribution and indemnity. He took steps to obtain the consent of the respondents to issue the third party claims. The respondents refused to consent. The appellant then brought a motion for leave to issue the third party claims against Reiber and to extend the time for so doing.

The motion judge found that the appellant could not pursue the third party claims because he is an undischarged bankrupt and thus has no capacity to dispose of or otherwise deal with his property pursuant to s. 71 of the BIA. Consequently, she dismissed the appellant's motion.

Issues:

(1) Did the motion judge err in dismissing the appellant's motions for leave to issue third party claims?

Holding: Appeal allowed.

Reasoning:

(1) Yes. Precluding the bankrupt from bringing a claim for contribution and indemnity, in light of the Trustee's refusal to do so, leaves the situation that the bankrupt could be faced with a judgment for the entire amount due to the respondents, that will come out of his or her estate, with no ability to reclaim some...