Ontario Court Of Appeal Summaries (February 4 – 8, 2019)

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario (there were only three substantive decisions).

In Lam v University of Western Ontario, 2019 ONCA 82, the appellant claim against the university had been dismissed by way of summary judgment. The appellant claimed that he was pressured to switch out of a Ph.D program and into a master's program, in breach of contract and/or fiduciary duty. The appellant alleged that the committee lacked, or was unwilling to acquire, the necessary expertise in his area of research, and was misled and provided knowingly incorrect information about the availability and security of his funding. The motion judge had dismissed the claim largely on the basis of a determination that this was an academic matter that ought to have been pursued through the academic appeals process. The Court of Appeal disagreed and allowed the appeal. The Court confirmed that a relationship between a student and a university is contractual in nature, therefore there can be claims for breach of contract. The key to determining whether a claim is properly before the court as a breach of contract claim is the remedy sought. In this case, damages for breach of contract was the remedy sought, therefore this was properly before the civil courts and not a matter for the internal academic appeals process.

Other topics covered this week included the limitation period for enforcing foreign judgments (the later of the two years from the expiry of the appeal period from the foreign judgment and when the plaintiff knew or ought to have known that there were assets in Ontario against which the plaintiff could enforce its judgment), and striking pleadings as an abuse of process (attempt to re-litigate).

For our criminal law readers, we have also summarized two decisions relating to habeas corpus, mandamus and certiorari in the criminal law context where the parties and/or the court below had improperly treated the proceedings as judicial review applications, and applied the Rules of Civil Procedure and Judicial Review Procedure Act instead of the Criminal Proceedings Rules..

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 Nikou v. Karageorgos, 2019 ONCA 83

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

P. Côté, for the appellant

G. Tighe and J. Nehmetallah, for the respondents L.K., R.B., J.Z. and A.P.

J. Maggisano, for the respondents S.T., E.T., V.T. and A.T.

No one appearing for the respondent Philip David

Keywords: Civil Procedure, Vexatious Litigants, Striking Pleadings, Vexatious and Frivolous Claims, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Gao v. Ontario WSIB, 2014 ONSC 6497, Joshi v. Canadian Imperial Bank of Commerce, 2018 ONCA 537, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 273

Facts:

The appellant is aggrieved that he and his siblings were cut out of his grandfather's will. Further, he believes that his grandfather and grandmother were subject to undue influence and fraudulent conduct by other family members.

The appellant's grandfather died in March 2010, which led to two lawsuits - a 2012 action and a 2015 action. Those actions were ultimately dismissed and discontinued, respectively.

In 2017, the appellant commenced three new actions against family members and a number of lawyers who were involved in transactions relating to his grandparents' estates, or who acted in the 2012 and 2015 actions. The three 2017 actions are overlapping and include claims framed in harassment and defamation. On May 29, 2018, after due notice, a motion judge dismissed those actions pursuant to Rule 2.1.01 of the Rules of Civil Procedure.

The appellant appealed each of the three dismissals, with three common grounds of appeal relating to each case, which can be described as follows:

The motion judge did not make a finding that the proceeding was frivolous or vexatious or an abuse of process as required by Rule 2.1.01(1); The motion judge erred in dismissing the action because the harassment and defamation claims find support in the pleadings; and The motion judge did not give reasons why the statement of claim could not be remedied with an amendment. Issue:

(1) Did the motion judge fail to make a finding that the proceeding was frivolous or vexatious or an abuse of process as required by Rule 2.1.01(1)?

(2) Did the motion judge err in dismissing the action because the harassment and defamation claims find support in the pleadings?

(3) Did the motion judge fail to give reasons why the statement of claim could not be remedied with an amendment?

Holding:

Appeal dismissed.

Reasoning:

(1) In part. While the motion judge did not describe the actions as frivolous, vexatious or an abuse of process, it was clear that in all of the circumstances she found the claims to be frivolous and vexatious on their face. After considering the pleadings and what she found to be the appellant's unresponsive written submissions in each case, she concluded that although the claims appeared to identify causes of action, they did not contain pleadings supporting those causes of action. In other words, the claims were frivolous because they lacked a legal basis or legal merit, and they were vexatious in the sense that they were instituted without reasonable ground.

(2) No. The claims did not sufficiently express the gravamen of cognizable causes of action. To the extent that a basis for allegations of harassment and defamation could be gleaned from an optimistic reading of the pleadings, those allegations related to the pleadings and evidence given in the 2012 and 2015 actions. In other words, they represented an attempt to reopen the 2012 and 2015 actions. Attempting to relitigate, in a new action, matters that have already been determined by final court orders is an abuse of process and can form no basis for a cognizable cause of action.

(3) No. The motion judge explained that the pleadings did not have legal merit and could not sustain a cognizable cause of action. Accordingly, permitting amendments would be pointless.

Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

G. Sidlofsky, for the appellant M. Munro, for the respondent

Keywords: Civil Procedure, Private International Law, Conflicts of Laws, Foreign Judgments, Enforcement, Limitation Periods, Discoverability, Appropriate Means, Limitations Act, 2002, SO 2002, c 24, Schedule B, s 5, Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, General Motors Acceptance Corporation of Canada, Limited v. Town & Country Chrysler Limited, 2007 ONCA 904

Facts:

In August 2014, the appellant obtained a default judgment in the amount of US$451,435,577.37 against the respondent in the United States District Court for the District of South Carolina (the "SC Default Judgment"). On December 8, 2017, the appellant commenced this Ontario action to recognize and enforce the SC Default Judgment. On December 20, 2017, the appellant secured an ex parte Mareva injunction against the respondent. The motion judge set aside the Mareva injunction, holding that the action to enforce the SC Default Judgment was commenced outside the time period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

Issue:

(1) Did the motion judge err in holding that time began to run 30 days after the date of the SC Default Judgment?

(2) Did the motion judge err in failing to find that time did not begin to run until the appellant had actual knowledge that the respondent had assets in Ontario?

Holding:

Appeal dismissed.

Reasoning:

(1) No. In Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, the Court of Appeal held that: (i) the basic two-year limitation period in s. 4 of the Limitations Act, 2002 applies to a proceeding on a foreign judgment; and (ii) the limitation period begins to run, at the...