Ontario Court Of Appeal Summaries (January 28 – February 1, 2019)

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

In Presley v Van Dusen, the Court of Appeal yet again dealt with discoverability. The case reviews the elements for analyzing discoverability under section 5 of the Limitations Act, 2002, including the "appropriate means" test, and discusses what kind of professional relationships may give rise to reasonable reliance.

In McDowell v. Fortress Real Capital Inc., the Court of Appeal overturned in part a motion judge's decision to strike out the claims of a proposed class proceeding for various allegations of misconduct. In so doing, the Court canvassed the law relating to personal liability for corporate acts, the sealed contract rule and the rights of beneficiaries of a trust to assert the claims belonging to the trustee.

Other topics covered this week included contractual interpretation, conflict of laws and costs in the family law context.

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.

CIVIL DECISIONS

Ferro v. Weiner, 2019 ONCA 55

[Hourigan, Miller and Trotter JJ.A.]

Counsel:

B.J. Smith, for the appellant

W.G. Woodward, for the respondents

Keywords: Contracts, Interpretation, Insurance, Coverage, Standard of Review, Canadian Universities' Reciprocal Insurance v. Halwell Mutual Insurance Co. (2002), 61 OR (3d) 113, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, The Wawanesa Mutual Insurance Company v. Bell, [1957] SCR 581, Wood v Krebs, 2004 CarswellOnt 3590

Facts:

A woman owned a cottage property which was her sole residence from the late 1980s or early 1990s, until she moved to a nursing home. Although she never resumed full-time residence at the house, her three adult children and their families all continued to use it as a cottage. She would occasionally stay there with them. At all relevant times she was the sole owner. The owner was also the sole named insured under a Homeowners policy provided by Intact.

The policy provided coverage not only for the named insured, but also for all the insured's relatives "while living in the same household" as the named insured. It covered liability from unintentional bodily injury or property damage arising from an insured's "personal actions anywhere in the world." It covered not only the insured's primary residence, but also the insured's "seasonal and other residences," provided that these premises were listed on the Coverage Summary page.

The respondents - the owner's son, his wife, and their daughter - were defendants in an action brought by the family of a man who drowned at the house. The appellant (the owner's estate) was also a defendant. The plaintiffs' claim was settled by the adult son's insurer, TD Insurance. TD moved for summary judgment, seeking a declaration that Intact was bound to defend and indemnify all defendants against the plaintiffs' claims. The motion was granted, and the judge ordered a declaration that the respondents were insured under the Intact policy. The motion judge also ordered that Intact indemnify TD for half of the value of the settlement with the plaintiffs.

Central to the motion judge's analysis was her finding that the respondents were not visitors to the house. She noted that the son attended at the house when he wished and cared for it as an owner would, later taking an ownership interest in it. The motion judge adopted reasoning from Canadian Universities' Reciprocal Insurance v. Halwell Mutual Insurance Co. that "household" can have a flexible meaning, and that "the meaning must be gleaned from interpreting its use in the policy of insurance using the rules of interpretation of contracts and of insurance policies, including that any ambiguity is to be resolved in favour of the insured." She reasoned that in the "context of this policy and this property ... [the respondents] are included in [the owner's] 'household'."

Issues:

(1) Did the motion judge err by basing her analysis of the meaning of "household" on the adult son's attitude towards the house, rather than his relationship with the owner?

(2) Did the motion judge err in her interpretation of the term "dwelling" in the Intact policy?

(3) Did the motion judge err in her interpretation of Canadian Universities?

(4) Did the motion judge err by reaching a commercially unreasonable conclusion?

Holding:

Appeal allowed.

Reasoning:

The Court first addressed the standard of review, concluding that each of the issues warranted a correctness standard. There was no meaningful factual matrix, and since the household clause formed part of a standard form homeowner's insurance policy, its interpretation had precedential value for other insurance policies.

(1) Yes. The inquiry into the son's relationship to the house was not the ultimate question. That inquiry was only relevant to the extent that it shed light on the further question of his relationship with the owner. The son's use of the house was relevant to the question of whether the house was his residence. If the only question was whether the house was his seasonal residence, there might be no basis to interfere with the motion judge's finding that he was more than a visitor.

However, the Court observed that although "household", in ordinary speech, can refer either to a residence or a type of community, in the context of insurance law it is the latter. Canvassing the case law on this point, the Court remarked that although a household is not synonymous with a family, the existence of a household is evidenced by the extent to which its members share the intimacy, stability, and common purpose characteristic of a functioning family unit. What is essential is not how the household is structured, but the degree to which the choices and actions of all members of the household are motivated by "an interest in the life of all that gives it a unity".

Further, a household is constituted not only by its members' patterns of living with each other, but also by their settled intentions. A person can maintain membership in a household despite lengthy absences from a common residence, provided there is continued self-identification as a member of the household, with a settled intention to return to the common residence.

With this understanding of "household" in mind, the Court rejected the respondents' argument that "household" should be interpreted broadly because it was contained within the coverage clause of the Intact policy. Whether a case involves a coverage clause may influence the result in borderline cases, but the Court found that this was not such a case. The facts were inconsistent with the respondents being members of the household, as understood according to the relevant case law.

Lastly, the Court rejected the respondents' alternative argument that, on the basis of the Court of Appeal's prior decision in Wood v. Krebs, they should be understood to be members of both their household in the city as well as members of the owner's household at the cottage property. The Court emphasized that Wood did not stand for the general proposition that an adult can be a member of both his own household and that of a parent in the context of a family cottage. Additionally, the Court rejected the respondents' argument that the criteria for determining the existence of a household should be altered for vacation properties, that the "integration" requirement should be relaxed to the degree of integration needed for families to share a vacation property, and that "permanence" should be understood as an ongoing pattern of occasional use for recreational purposes. As noted, this argument had no basis in the existing jurisprudence.

In view of the above, the Court concluded that the respondents were not members of the owner's household, and as such, were not entitled to coverage under the Intact policy. Given the Court's finding on this issue, it declined to address issues (2) through (4).

Goodlife Fitness Centres Inc. v. Rock Developments Inc., 2019 ONCA 58

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

Counsel:

10. Renihan, for the appellants

13. Polvere, for the respondent

    Keywords: Contracts, Interpretation, Enforceability, Real Property, Agreements of Purchase and Sale of Land, Restrictive Covenants, Rights of First Refusal, Salah v. Timothy's Coffees of the World Inc., 2010 ONCA 673, The Canada Trust Company v. Browne, 2012 ONCA 862, Weyerhaeuser Company Limited v. Ontario (Attorney General, 2017 ONCA 1007

    Facts:

    Goodlife Fitness Centres Inc. ("Goodlife") agreed to purchase from R.T., principal of Lifestyle Family Fitness Centre Inc. ("LFF"), LFF. R.T., through his company Rock Developments Inc. ("RDI"), also owned various other properties. Emails exchanged a year prior to LFF's sale closing revealed that the parties discussed restrictive covenants on three properties owned by R.T, which would have prevented the use of these properties for fitness facilities.

    R.T...