Ontario Court Of Appeal Summaries (November 5 - 9, 2018)

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

I would first like to congratulate two of our lawyers, Margaret Rintoul and Aly Virani, on their successful appeal in Kilitzoglou v. Cure. The Court followed the reasoning that has developed in the cases following Satva Corp. v. Creston Moly Corp. primarily in terms of clarifying the "factual matrix" that a judge may apply in the interpretation of a contract. In this case, a rather broad interpretation by the trial judge of the facts surrounding the making of a domestic contract was held to be a flawed interpretation that contravened the actual language of the contract. Overall, the message from the decision is a reaffirmation that the actual clear wording of a contract trumps the factual matrix and any speculation as to an intention contrary to the wording of a contract.

In Imeson v Maryvale (Maryvale Adolescent and Family Services), the Court delivered an important decision on the difference between the evidence of fact-witness experts who participated in the events in question, and experts brought in after the fact by counsel. The former do not need to comply with Rule 53 relating to the delivery of expert reports. The latter do. This case builds upon the Westerhof v Gee Estate decision relating to expert evidence. There is also an important discussion about the admissibility of expert evidence in the context of the Mohan/White Burgess tests of necessity and reliability.

The case itself was for liability for sexual assault. The plaintiff was successful at a jury trial, partly on the basis of the evidence of the doctor who had treated him. The doctor's evidence recounting what the plaintiff had told the doctor about the abuse was admitted into evidence. Despite a hearsay warning given to the jury by the trial judge, there was a danger that the jury would rely on the doctor's evidence to conclude that the plaintiff's story was credible. The Court determined that the evidence should not have been admitted. The appeal was allowed and a new trial was ordered.

In Williams v Richard, the Court opened the door for a finding of social host liability on the specific facts of that case. The motion judge had dismissed the claim by way of summary judgment, relying on the leading social host liability decision of the Supreme Court in Childs v Desormeaux. The Court set aside that dismissal and sent the case to trial.

In York University v Markicevic, York University was successful in recovering severance paid to a former employee who it later discovered had misappropriated the University's funds. The trial judge permitted York's action and in the process, set aside releases exchanged between the parties when the severance was paid. The former employee had claimed that the action was statute-barred. The Court of Appeal dismissed his appeal.

In Apotex v Schering Corporation, the appellants' patent had been upheld by a prior court decision in reliance on the "promise doctrine". The patent was upheld before the Supreme Court effectively abolished the promise doctrine in its 2017 decision in AstraZeneca Canada Inc. v Apotex Inc. In this new action, Apotex was permitted to amend its defence to effectively re-litigate the validity of the patent because the promise doctrine is no longer the law in Canada. The Court stated that the doctrines of issue estoppel, collateral attack and abuse of process were flexible enough to permit a court to refuse to apply them in an appropriate situation. Where, as in this case, the law had changed from the time of the prior decision to the time of the new proceeding, the Court determined that it would be unjust not to permit the re-litigation of the validity of the patent.

Other topics covered this week included the duty of honest performance, constructive dismissal and adverse possession.

Table of Contents

Civil Decisions

Kilitzoglou v. Curé, 2018 ONCA 891

Keywords: Family Law, Cohabitation Agreements, Contracts, Interpretation, Factual Matrix, Estates, Bad Faith, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888

Keywords: Torts, Sexual Assault, Civil Procedure, Evidence, Admissibility, Hearsay, Expert Opinion Evidence, Participant Expert Evidence, Jury Instructions, Rules of Civil Procedure, RRO 1990, Reg 194, r 53.03, Evidence Act, RSO 1990, c E.23, s 35, Westerhof v Gee Estate, 2015 ONCA 206, R v Mohan, [1994] 2 SCR 9, White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, R v Abbey, 2009 ONCA 624, R v Shafia, 2016 ONCA 812, Bruff-Murphy (Litigation guardian of) v Gunawardena, 2017 ONCA 502, R v Llorenz (2000), 145 CCC (3d) 535 (Ont CA), R v Marquard, [1993] 4 SCR 223

Williams v. Richard, 2018 ONCA 889

Keywords: Torts, Negligence, Host Liability, Duty of Care, Foreseeability, Proximity, Public Policy, Summary Judgment, Childs v Desormeaux, 2006 SCC 18, John v Flynn, 54 OR (3d) 774 (CA), Anns v Merton London Borough Council (197), [1978] AC 728, Cooper v Hobart, 2001 SCC 73, Odhavji Estate v Woodhouse, 2003 SCC 69

Apotex Inc. v. Schering Corporation, 2018 ONCA 890

Keywords: Intellectual Property, Patents, Promise Doctrine, Civil Procedure, Res Judicata, Issue Estoppel, Abuse of Process, Collateral Attack, Standard of Review, Patent Act, R.S.C. 1985, c. P-4, s. 62, AstraZeneca Canada Inc. v Apotex Inc., 2017 SCC 36, Housen v Nikolaisen, 2002 SCC 33, Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, Toronto (City) v C.U.P.E. Local 79, 2003 SCC 63, Minott v O'Shanter Development Co. (1999), 42 OR (3d) 321 (C.A.)

York University v. Markicevic, 2018 ONCA 893

Keywords: Contracts, Employment, Severance, Releases, Rescission, Fraud, Misrepresentation, Civil Procedure, Limitation Periods, Standard of Review, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, Longo v. MacLaren Art Centre, 2014 ONCA 526

2279088 Ontario Inc. v. Nisbet, 2018 ONCA 897

Keywords: Real Property, Adverse Possession, Trespass, Masidon Investments Ltd. v. Ham (1984), 45 O.R. (3d) 563 (C.A.), leave to appeal refused, [1984] S.C.C.A. No. 232, Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (C.A.), Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, Weidelich v. de Koning, 2014 ONCA 736, Nelson (City) v. Mowatt, 2017 SCC 8, J. A. Pye (Oxford) Ltd. v. Graham, [2002] UKHL 30

CM Callow Inc. v. Zollinger, 2018 ONCA 896

Keywords: Contracts, Duty of Honest Performance, Bhasin v Hrynew, 2014 SCC 71, Mohamed v Information Systems Architects Inc., 2018 ONCA 428

Hampton Securities Limited v. Dean, 2018 ONSC 893

Keywords: Employment Law, Termination Without Cause, Constructive Dismissal, Defamation, Qualified Privilege, Contracts, Enforceability, Punitive Damages, Costs, Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 SCR 3, Employment Standards Act, 2002, SO 2000, c 41

Short Civil Decisions

De Montigny v Roy, 2018 ONCA 884

Keywords: Labour Law, Civil Procedure, Striking Pleadings, Jurisdiction, No Reasonable Cause of Action, Weber v Ontario Hydro, [1995] 2 S.C.R. 929, Giorno v Pappas (1999), 42 O.R. (3d) 626 (C.A.)

Provincial Offences and Criminal Decisions

Northern Bruce Peninsula (Municipality) v. Dolson, 2018 ONCA 895

Keywords: Provincial Offences, Municipal Law, Building Code, Limitation Periods, Building Code Act, 1992, SO 1992, c 23, s 36(8), R v Pickles, [2004] OJ No 662 (CA)

R v. D.E. (Publication Ban), 2018 ONCA 883

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Evidence, The Rule in Browne v Dunn, R v Radcliffe, 2017 ONCA 176, Browne v Dunn (1893), 6 R. 67 (U.K.H.L.), Adverse Inference, R v Ellis, 2013 ONCA 9

R v. Lewin, 2018 ONCA 882

Keywords: Criminal Law, Child Abduction, Criminal Code, s. 282(1)

R v. Williams, 2018 ONCA 886

Keywords: Criminal Law, Controlled Drugs and Substances Act, s. 6(1), Criminal Code, s. 742.1(c), Sentencing

R v. Fells (Publication Ban), 2018 ONCA 881

Keywords: Criminal Law, Sexual Assault, Evidence, Corroboration

R v. Ludwig, 2018 ONCA 885

Keywords: Criminal Law, Arson, Intentionally or Recklessly Causing Damage by Fire to Dwelling House, Willfully and Without Lawful Cause Endangering a Dog, Mens Rea, Criminal Code, s. 434.1 and s. 433(a), Evidence, Burden of Proof, R. v. Greenwood (1864), 23 U.C.R. 250, R. v. Rothe, [1966] 4 C.C.C. 400, R. v. Chandroga [1999], O.J. No. 488

R v. Lopez-Restrepo, 2018 ONCA 887

Keywords: Criminal Law, Drug Offences, Delay, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Morin [1992], 1 S.C.R. 771, R v Faulkner, 2018 ONCA 174, R v T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, R v Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741

Ontario Review Board Appeals

Cardinal (Re), 2018 ONCA 892

Keywords: Ontario Review Board, Mental Illness, Danger to Public Safety


Kilitzoglou v. Curé, 2018 ONCA 891

[Juriansz, Brown and Huscroft JJ.A.]


M. Rintoul and A. Virani, for the appellants

L. Klug, for the respondent

Keywords: Family Law, Cohabitation Agreements, Contracts, Interpretation, Factual Matrix, Estates, Bad Faith, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53


The appellants were estate trustees of their late father's Estate. The respondent was in a spousal relationship with the father and after 22 months of dating, the father made a down payment on a residence registered only in his name, but where they both cohabited. The purchase was also financed by a mortgage, in the father's name alone.

Thereafter, the respondent and the father signed a cohabitation agreement. The agreement entitled the respondent to stay in the residence following the father's death for three years, provided she paid the sum of $140,000 to the father's Estate. It additionally stipulated that if the respondent did not...

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