Ontario Court Of Appeal Summaries (April 15 – 18, 2019)

Good evening.

Please find below our summaries of the civil decisions of the Court of Appeal for Ontario.

In Hughes v. Liquor Control Board of Ontario, the Court affirmed a motion judge's dismissal of a proposed class action against the LCBO stemming from an agreement between the LCBO and Brewer's Retail which provided terms for the sale of beer in Ontario. The appellants alleged that the agreement violated the Competition Act and that a surcharge levied on restaurants violated the Liquor Control Act. The Court found that amendments to the Liquor Control Act had retroactive effect, such that the regulated conduct defence applied. The Court then found that there was no need to perform statutory interpretation on the Liquor Control Act to determine if the surcharge was a violation, because the Government of Ontario changed the Liquor Control Act retroactively to authorize the price differential.

In Clark v. Ontario (Attorney General), two police officers sued the Attorney General for negligence and misfeasance in public office flowing from the Crown's dismissal of charges against accused on the basis of allegations that the officers had committed assaults against them. The officers alleged that the Crown had failed to adequately investigate the assault allegations and to call relevant evidence before consenting to the dismissal of the charges. The Court affirmed the existing case law, holding that an action against the Crown does not lie in negligence, but it does for misfeasance in public office. The Court upheld the motion judge's order that had struck the negligence claim as disclosing no cause of action, but permitted the misfeasance in public office claim to proceed. The Court also agreed with the motion judge that the limitation period should not be relied on to strike the claim at the pleadings stage absent a full evidentiary record, on which discoverability issues could arise.

In Kawartha-Haliburton Children's Aid Society v. M.W., the Court addressed the requirements placed on judges in child protection proceedings under the Child, Youth and Family Services Act, and reviewed the approach to summary judgment motions in such matters. The Court confirmed that matters commenced, but not concluded, under the old legislation were governed by the new CYFSA, thereby imposing different statutory requirements upon judges addressing the question of children's - especially Indigenous children's - access to their parents. Further, the Court reaffirmed that the approach to summary judgment in child protection proceedings is and always has been one of caution, with a focus on the Charter implications at stake for vulnerable litigants.

Other matters covered this week included motions to change spousal support orders, and a residential tenancy dispute involving a missing cat.

On another note, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which has been rescheduled and will now be taking place at the OBA, 20 Toronto Street, Toronto, on Thursday, May 9, 2019. It is a three-hour dinner program beginning at 5 PM, which will also be available by live webcast for those who cannot attend in person.

Our first set of panelists, Eliot Kolers, David Thompson and Katherine Di Tomaso, will discuss 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, a panel led by Glenn Chu of the City of Toronto 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.

Wishing everyone celebrating a Happy Easter long weekend and Happy Pesach.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

Gordashevskiy v Aharon, 2019 ONCA 297

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Genuine Issue for Trial, Credibility

Choquette v Choquette, 2019 ONCA 306

Keywords: Family Law, Spousal Support, Termination, Material Change in Circumstances, Spousal Support Advisory Guidelines, Divorce Act, RSC 1985, c 3 (2nd Supp.), s 15(7), 17(7), Johanson v Hinde, 2016 ONCA 430, Hersey v Hersey, 2016 ONCA 494, Walsh v Walsh, 2007 ONCA 218, Moge v Moge, [1992] 3 SCR 813, Gray v Gray, 2014 ONCA 659, Walsh v Walsh (2006), 29 RFL (6th) 164, rev'd in part, on other grounds, 2007 ONCA 618, Juvatopolos v Juvatopolos (2004), 9 RFL (6th) 147 (ONSC), aff'd (2005), 19 RFL (6th) 76 (ONCA)

Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305

Keywords: Competition Law, Torts, Misconduct by Civil Authority, Regulated Conduct Defence, Unjust Enrichment, Civil Procedure, Class Proceedings, Summary Judgment, Constitutional. Law, Division of Powers, Statutory Interpretation, Retroactive Effect, Competition Act, RSC, 1985, c C-34, ss. 36, 45(1) and 45(7), Liquor Control Act, RSO 1990, c L18, ss. 3(1.1) & 10(3), Liquor Licence Act, RSO 1990, c L19, Constitution Act, 1867, s. 92(13) & 92(16), AG Can v Law Society of BC, [1982] 2 SCR 307, Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, General Motors of Canada Ltd. v. City National Leasing, [1989] 1 SCR 641, Paradis Honey Ltd. v. Canada (Ministry of Agriculture and Agri-Food), 2015 FCA 89, Brad-Jay Investments Ltd. v. Szijiarto (2006), 218 OAC 315 (CA)

Kawartha-Haliburton Children's Aid Society v. M.W., 2019 ONCA 316

Keywords: Family Law, Custody and Access, Crown Wardship, Civil Procedure, Summary Judgment, Child and Family Services Act, RSO 1990, c C11, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched. 1, Family Law Rules, O Reg 114/99, Hryniak v. Mauldin, 2014 SCC 7, Catholic Children's Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46

French v. H&R Property Management Ltd., 2019 ONCA 302

Keywords: Real Property, Residential Tenancies, Torts, Negligence, Civil Procedure, Amending Pleadings, Limitation Periods, Limitations Act, 2002, SO 2002, c 24, Sched B, Residential Tenancies Act, 2006, SO 2006, c 17, Rules of Civil Procedure, Rules 25.06(5), 25.08(2), 26.01, & 76.12(3), Housen v. Nikolaisen, 2002 SCC 33, Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, United Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, Dee Ferraro Ltd v. Pellizzari, 2012 ONCA 55, 1100997 Ontario Ltd v. North Elgin Centre Inc., 2016 ONCA 848, Davis v. East Side Mario's Barrie, 2018 ONCA 410

Clark v Ontario (Attorney General), 2019 ONCA 311

Keywords: Torts, Negligence, Misfeasance in Public Office, Crown Liability, Crown Immunity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Questions of Law, Frivolous, Vexatious and Abuse of Process, Limitation Periods, Proceedings Against the Crown Act, RSO 1990, c P 27, ss 7, 10, Rules of Civil Procedure, Rules 21.01(1)(a), (b), 21.01(3)(d), 25.11, , Limitations Act, 2002, SO 2002, c 24, Sched B, Odhavji Estate v. Woodhouse, 2003 SCC 69, Hunt v. Carey Canada Inc., [1990] 2 SCR 959, Salewski v. Lalonde, 2017 ONCA 515, Nelles v. Ontario, [1989] 2 S.C.R. 170, Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, Miazga v. Kvello, 2009 SCC 51, [2009] 3 S.C.R. 339, Henry v. British Columbia (Attorney General), 2015 SCC 24, Vancouver (City) v. Ward, 2010 SCC 27, Smith v. Attorney General of Ontario, 2018 ONSC 993, Anns v. Merton London Borough Council, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Arora v. Whirlpool Canada LP, 2013 ONCA 657, leave to appeal refused, [2013] S.C.C.A. No. 498, Thompson v. Ontario (Attorney General) (1998), 113 OAC 82 (CA), Gilbert v. Gilkinson (2005), 205 OAC 188 (CA), leave to appeal refused, [2006] SCCA No 67

Criminal Decisions

R v. 2095540 Inc. (Appeal Book Endorsement), 2019 ONCA 296

Keywords: Criminal Law, Proportionality, Forfeiture

R v. Bajwa (Appeal Book Endorsement), 2019 ONCA 295

Keywords: Criminal Law, Fraud over $5,000, Conspiracy, Sentencing

R v. Gotzamanis (Appeal Book Endorsement), 2019 ONCA 298

Keywords: Criminal Law, Sentencing, Probation, Procedural Unfairness

R v. Rocker, 2019 ONCA 299

Keywords: Criminal Law, Human Trafficking, Credibility, Sentencing, Consecutive Sentences

R v. Stockton, 2019 ONCA 300

Keywords: Criminal Law, Possession of Methamphetamine, Breach of Recognizance, Search Warrants, s. 8 Charter Applications, Cross-Examination, s. 11 of the Charter of Rights and Freedoms, Right to be Tried within a Reasonable Time, Sentencing, Victim Fine Surcharge, R. v. Jordan, 2016 SCC 27

R v. D.A., 2019 ONCA 310

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Sentencing, Non-Communication Orders, R. v. D.M., 2012 ONCA 520

R v. Goulart, 2019 ONCA 308

Keywords: Criminal Law, Possession for the Purposes of Trafficking, Possession of the Proceeds of Crime, Search Warrants

R v. McGregor, 2019 ONCA 307

Keywords: Criminal Law, Kidnapping, First Degree Murder, Constructive First Degree Murder, s. 231(5) of the Criminal Code, Predicate Offence, Continuing Domination, Jury Instructions, Post-Offence Conduct, Provocation, Closing Submissions, R. v. Harbottle, [1993] 3 SCR 306, R. v. Paré, [1987] 2 SCR 618, R. v. Parris, 2013 ONCA 515, R. v. Calnen, 2019 SCC 6

R v. Paul, 2019 ONCA 304

Keywords: Criminal Law, Sentencing, Credit for Pre-Sentence Custody

R v. Latif, 2019 ONCA 309

Keywords: Criminal Law, Sentencing, Victim Fine Surcharge, Recognizance, Probation...

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