Ontario Court Of Appeal Summaries (January 21 – 25, 2019)

Good evening,

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

Zeppa v Woodbridge Heating & Air-Conditioning Ltd was yet another decision on discoverability. Justice Feldman dissented. The case reviews the discoverability analysis under section 5 of the Limitations Act, 2002 in detail, including the "appropriate means" test, as well as discussing the interplay between the discoverability analysis and fraudulent concealment.

In Welsh v. Ontario, the Court of Appeal held that although it was within Justice Perrell's discretion to express concerns about the amount of class counsel's fees, he was not permitted to modify the terms of a negotiated settlement unilaterally, without the consent of the parties and without seeking submissions from the parties on the issue. The motion judge's decision to require more than a third of class counsel's fees to be donated to charity was set aside, and the matter was remitted to another judge of the Superior Court.

Other topics covered this week included commercial tenancies, residential tenancies, oppression in the condo law context, the expiry of a tolling agreement, restarting the limitation period clock, municipal law (authority to pass bylaws) and health law (OHIP).

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which will take place at the OBA, 20 Toronto Street, Toronto, on Monday, February 25. It is a three hour dinner program beginning at 5pm, which will also be available by live webcast for those who cannot attend in person.

Eliot Kolers, David Thompson and Katherine Di Tomaso will be our panelists on the first set of cases: Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the "Anti-SLAPP Sextet".

Last, but certainly not least, Glenn Chu of the City of Toronto, Yashoda Ranganathan of MAG and Donald Eady will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Have a nice weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Rock Solid Holdings Inc. v. Shuniah (Municipality), 2019 ONCA 35

Keywords: Administrative Law, Municipal Law, By-Laws, Procedural and Natural Justice, Notice, Bad Faith, Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55

Drew v. Huskinson, 2019 ONCA 38

Keywords: Contracts, Real Property, Commercial Leases, Termination, Events of Default, Substantial Non-Performance, Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd., 270 D.L.R. (4th) 181(Ont. C.A.)

1853491 Ontario Inc. v. Regional Waste North Inc, 2019 ONCA 37

Keywords: Contracts, Debtor-Creditor, Corporations, Shares, Beneficial Interest, Civil Procedure, Summary Judgment, Limitations Periods, Tolling Agreements, Butera v Chown, Cairns LLP, 2017 ONCA 783, Limitations Act 2002, S.O. 2002, c. 24

Misir v. Ontario (Health and Long-Term Care), 2019 ONCA 36

Keywords: Administrative Law, Health Law, Constitutional Law, Ontario Health Insurance Plan, Private Health Insurance, Civil Procedure, Orders, Collateral Attack, Health Insurance Act, RSO 1990, c H.6, s 14, Canadian Charter of Rights and Freedoms, s 7

Toronto Standard Condominium Corporation No. 2051 v. Georgian Clairlea Inc., 2019 ONCA 43

Keywords: Real Property, Condominiums, Oppression, Condominium Act, 1998, SO 1998, c 19, ss 74, 135(2), BCE Inc. v. 1976 Debentureholders, 2008 SCC 69

Welsh v. Ontario, 2019 ONCA 41

Keywords: Civil Procedure, Class Proceedings, Settlements, Approval, Class Counsel Fees, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.J. No. 1598 (Gen Div), Ford v. F. Hoffmann-La Roche Ltd. (2005), 74 O.R. (3d) 758 (SCJ), Smith Estate v. National Money Mart Co., 2011 ONCA 233

Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44

Keywords: Administrative Law, Standard of Review, Statutory Interpretation, Real Property, Residential Tenancies, Rent Control, Residential Tenancies Act, 2006, S.O. 2006, c.17, ss 3, 38, 113, 120, 116, 136, Matthews v. Algoma Timberlakes Corp., 2010 ONCA 468, Price v. Turnbull's Grove Inc., 2007 ONCA 408, Price v. Turnbull's Grove Inc., 2007 ONCA 408, Nanne v. 3011650 Nova Scotia Limited (Michipicoten Forest Resources), 2015 ONCA 391

Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47


Keywords: Contracts, Torts, Negligence, Misrepresentation, Civil Procedure, Limitation Periods, Discoverability, Appropriate Means, Fraudulent Concealment, Summary Judgment, Limitations Act, 2002, SO 2002, c 24, Sched B, s 4, s 5(1)(a), s 5(1)(a)(iv), s 5(2), s 15, s 15(4)(c), Rules of Civil Procedure, Rule 25.06(8), Lawless v Anderson, 2011 ONCA 102, Kowal v Skyiak, 2012 ONCA 512, Lochner v Toronto (Police Services), 2015 ONCA 626, Beaton v Scotia iTrade and Scotia Capital, 2012 ONSC 7063, affirmed 2013 ONCA 554, McSween v Louis (2000), 132 OR (3d) 304 (CA), Presidential MSH Corporation v Marr Foster & Co LLP, 2017 ONCA 325, Guerin v The Queen, [1984] 2 SCR 335, Colin v Tan, 2016 ONSC 1187, Giroux Estate v Trillium Health Centre (2005), 74 OR (3d) 341 (CA), Roulston v McKenny, 2017 ONCA 9, Anderson v McWatt, 2015 ONSC 3784, Halloran v Ontario (Employment Standards Act Referee) (2002), 217 DLR (4th) 327 (CA), Dhaliwal v Lindsay, 2009 CanLII 60415, affirmed 2010 ONCA 493, leave to appeal to SCC refused, [2010] SCCA No 401, Kim v The Manufacturers Life Insurance Company, 2014 ONCA 658

Short Civil Decisions

Figueroa v. Patel, 2019 ONCA 42

Keywords: Civil Procedure, Dismissal for Delay

Barkley v. Tier 1 Capital Management Inc., 2019 ONCA 54

Keywords: Civil Procedure, Class Proceedings, Class Proceedings Act, 1992, s 5(1)(a)

Brauti Thorning Zibarras LLP v. Nguyen, 2019 ONCA 45

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rule 25.11(b)

Starkman Barristers v. Cardillo, 2019 ONCA 53

Keywords: Civil Procedure, Assessments, Evidence, Admissibility, Business Records

Criminal Decisions

R. v. Reid, 2019 ONCA 32

Keywords: Criminal Law, Possession of Marijuana, Failure to Comply With Firearm Prohibition, Canadian Charter of Rights and Freedoms, ss. 9 and 24(2), Trespass to Property Act, R.S.O. 1990, c. T.21, R. v. Czibulka, 2011 ONCA 82, R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), R. v. Amofa, 2011 ONCA 368, R. v. Peterkin, 2015 ONCA 8, R. v. Grant, 2009 SCC 32, R. v. Suberu, 2009 SCC 33, R. v. Mann, 2004 SCC 52, Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, R. v. Chehil, 2013 SCC

R. v. Land, 2019 ONCA 39

Keywords: Criminal Law, Second Degree Murder, Defences, Provocation, Self-Defence, Criminal Code, R.S.C. 1985, c. C-46, ss. 232 (1) (2) and (3), 235(1), R. v. A.N., [1997] O.J. No. 3439 (Ct. J. (Prov. Div.)), R. v. Vaz, [2000] O.J. No. 5245 (Ct. J.), R. v. Walizadah, [2002] O.J. No. 2833 (S.C.), aff'd [2002] O.J. No. 5451 (C.A.), R. v. Suarez-Noa, 2017 ONCA 627, R. v. Gill, 2009 ONCA 124, R. v. Ariaratnam, 2018 ONCA 1027, R. v. Scorcia, 2011 ONCA 17, R. v. Mayuran, 2012 SCC 31, R. v. Cairney, 2013 SCC 55, R. v. Tran, 2010 SCC 58, R. v. Buzizi, 2013 SCC 27, R. v. Thibert, [1996] 1 S.C.R. 37, R. v. Grant, 2015 SCC 9, R. v. Cinous, 2002 SCC 29, R. v. Bulmer, [1987] 1 S.C.R. 782, R. v. Park, [1995] 2 S.C.R. 836, R. v. Hill, [1986] 1 S.C.R. 313

R. v. McWatters, 2019 ONCA 46

Keywords: Criminal Law, Criminal Negligence Causing Death, Failure to Remain at Scene of Accident, Possession of Property Obtained by Crime, Driving While Disqualified, Criminal Code, ss. 259(4), 743.6

R. v. Weir, 2019 ONCA 40

Keywords: Criminal Law

R. v. G.F., 2019 ONCA 50

Keywords: Criminal Law, Sexual Assault, Criminal Code, s. 273.1(2)(c), R. v. Lutoslawski, 2010 ONCA 217

R. v. W.R., 2019 ONCA 49

Keywords: Criminal Law, Sexual Assault, Jury Instructions

Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem), 2019 ONCA 0031

Keywords: Criminal Law, Civil Forfeiture, Proceeds of Unlawful Activity, Evidence, Admissibility, Expert Evidence, Participant Experts, Hearsay, Civil Remedies Act, 2001, S.O. 2001, c. 28, ss. 2, 3(1) and 3(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1)(a), Rules of Civil Procedure, Rule 2.03, 39.01(5), 39.01(7) and 53.03, Westerhof v. Gee Estate, 2015 ONCA 2006, R. v. Abbey, [1982] 2 S.C.R. 24, R. v. Caesar, 2016 ONCA 599, R. v. Baksh (2005), 199 C.C.C. (3d) 201 (Ont. Sup. Ct.), aff'd 2008 ONCA 116, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 155, Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, Ontario (Attorney General) v. 714 Railton Avenue, 2014 ONCA 397

Ontario Review Board

Phillip (Re), 2019 ONCA 48

Keywords: Ontario Review Board, Criminal Law, Assault, Breach of Probation


Rock Solid Holdings Inc. v. Shuniah (Municipality), 2019 ONCA 35

[Brown, Paciocco and Zarnett JJ.A.]


M. Holervich, for the appellants

R. Johansen, for the respondent

Keywords: Administrative Law, Municipal Law, By-Laws, Procedural and Natural Justice, Notice, Bad Faith, Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55


The appellants commenced an application to declare illegal, a series of by-laws under which the Municipality sought to control the weight of vehicles travelling on municipal roads. They submitted that the by-laws were enacted in bad faith because the appellants (or the previous owners of the gravel pit) were not given actual, personal notice of the Municipality's intention to pass them and an opportunity to be...

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