Ontario Court Of Appeal Summaries (May 27 – 31, 2019)

Good evening.

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

The headline decision this week is clearly S.H. v D.H., 2019 ONCA 454, which deals with the very modern, relevant and controversial area of assisted human reproduction. The couple in that case had contracted for frozen embryos that were biologically not related to either of them. They had one child together using some of those embryos. They subsequently separated and divorced. The ex-wife then wanted to have a second child using the remaining embryos, which were biologically related to the parties' only child. She undertook not to request any support of any kind from the ex-husband for the new child to be born. After having initially consented, the ex-husband changed his mind and refused to allow his ex-wife to have another child using the remaining embryos. At first instance, the ex-wife was successful in obtaining permission to use the embryos. The lower court's decision was based on contract and property law.

The Court of Appeal allowed the appeal. Its decision hinges on the interpretation of the Consent Regulations under the Assisted Human Reproduction Act, rather than the application of contract and property law. That Act and Regulation allow for the parties to revoke their consent to the use of the embryos at any time, and those protections cannot be contracted out of.

It is interesting to note that the outcome would have been different in this case if the ex-wife had been biologically related to the embryo and the ex-husband had not been. In that situation, the ex-husband would have lost his donor status and the ex-wife would have been free to proceed as she wished.

In Drummond v. Cadillac Fairview Corp Ltd., 2019 ONCA 413, we saw the Court address concerns of fairness in the context of reverse or "boomerang" summary judgment motions and the use of hearsay evidence on such motions. Congratulations to our very own Larry Reimer and Stuart Woody for the great result for our client. In this occupier's liability case, our client brought a motion for summary judgment to dismiss the slip and fall claim against our client. The motion judge not only dismissed the motion, but granted summary judgment in favour of the plaintiff, even though he had not brought a cross-motion for summary judgment, and had, in fact, argued on the motion that the case was not conducive to summary judgment. The Court allowed the appeal, and granted summary judgment to our client. The Court found that the motion judge had granted boomerang summary judgment without fair warning to our client, and also erred by relying on unsworn hearsay evidence on critical issues.

In another win for our firm in Dussault v. Imperial Oil Limited, 2019 ONCA 448, the Court held that the appellant employer failed to prove that our clients, the respondent employees, did not mitigate their damages when they were dismissed from the company. The Court agreed with the motion judge that the employment that was offered was not "comparable employment", therefore, the employees acted reasonably in refusing it. However, the Court parted ways with the motion judge on the issue of damages, and increased the amount payable to our clients. Congratulations to our own David Greenwood and Simon Reis for the excellent result.

Other topics covered this week included liability to shareholders for valuation opinions, relief from forfeiture in the option to renew a lease context, the renegotiation of employment terms mid-employment and the duty to mitigate in wrongful dismissal cases, municipal law (legal non-conforming uses), illegal distraint by a landlord following termination of a tenancy resulting in punitive damages, the limitation period for suing on personal guarantees of mortgage covenants (10 years, not 2 years), solicitor-client assessments, agreements of purchase and sale of land and extending the time to appeal.

Wishing everyone a nice weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

S.H. v. D.H. & Engineers, 2019 ONCA 454

Keywords: Contracts, Interpretation, Property Law, Health Law, Reproductive Rights, Assisted Human Reproduction, In Vitro Fertilization, Consent, Withdrawal, Statutory Interpretation, Assisted Human Reproduction Act, S.C. 2004, c. 2, ss. 7 & 8, Assisted Human Reproduction (Section 8 Consent) Regulations, S.O.R./2007-137, ss. 1, 10, 12, 13 & 14, Reference re Assisted Human Reproduction Act, 2010 SCC 61, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Hickman Motors Ltd. v. Canada, [1997] 2 SCR 336, State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Company of Canada, 2015 ONCA 699, Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, Transport North American Express Inc. v. New Solutions Financial Corp., 2004 SCC 7, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Hilson v. 1336365 Alberta Ltd., 2019 ONCA 434

Keywords: Contracts, Real Property, Mortgages, Guarantees, Torts, Solicitors' Negligence, Civil Procedure, Limitation Periods, Damages, Double Recovery, Real Property Limitations Act, R.S.O. 1990, c. L. 15, ss. 43(1), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, ss. 2(1)(a), Registry Act, R.S.O. 1990, c. R.20, Land Registration Reform Act, R.S.O. 1990, c. L.4, s. 21, Equitable Trust Company v. Marsig, 2012 ONCA 235, Martin v. Youngson, (1924), 55 O.L.R. 658 (C.A.), Zabanah v. Capital Direct Lending Corp., 2014 ONCA 872

Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc., 2019 ONCA 439

Keywords: Contracts, Real Property, Commercial Leases, Remedies, Termination, Distraint, Damages, Punitive Damages, Torts, Conversion, Corporate Veil, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Whiten v. Pilot Insurance Co., 2002 SCC 18, Beaver Steel Inc. v. Skylark Ventures Ltd., [1983] BCJ No 54 (S.C), McDowell v. Fortress Real Capital Inc., 2019 ONCA 71, ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 OR (2d) 481 (CA), 642947 Ontario Ltd. v. Fleischer (2001), 56 OR (3d) 417 (CA)

TRG-KFH (Lakeside) Inc. v. Muskoka Lakes (Township), 2019 ONCA 443

Keywords: Municipal Law, Zoning By-Laws, Interim Control By-Laws, Legal Non-Confirming Use, Planning Act, R.S.O 1990, c. R.6, s. 34(9), Building Code Act, 1992, S.O. 1992, c. 23, s. 8(1), Kim v Mississauga (City), (1996), 33 MPLR (2d) 135 (Ont. Gen. Div.)

Extreme Venture Partners Fund LLP v. Varma, 2019 ONCA 446

Keywords: Contracts, Breach, Torts, Negligence, Duty of Care, Civil Procedure, Summary Judgement

40 Park Lane Circle v. Aiello, 2019 ONCA 451

Keywords: Civil Procedure, Appeals, Extension of Time to Appeal, Rules of CivilProcedure, Rule 3.02, Denomme v. McArthur, 2013 ONCA 694, Duca Community Credit Union Ltd. v. Giovannoli (2001), 142 O.A.C. 146 (C.A.)

Dussault v. Imperial Oil Limited, 2019 ONCA 448

Keywords: Employment Law, Wrongful Dismissal, Damages, Calculation, Mitigation, Red Deer College v. Michaels, [1976] 2 SCR 324, Carter v. 1657593 Ontario Inc., 2015 ONCA 823, Employment Standards Act, 2000, S.O. 2000, C.41, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Waterman v. IBM Canada Ltd., 2013 SCC 70

Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447

Keywords: Torts, Negligence, Standard Of Care, Contributory Negligence, Occupiers' Liability, Civil Procedure, Reverse Summary Judgment, Procedural Fairness, Evidence, Affidavits, Admissibility, Hearsay, , Occupiers' Liability Act, R.S.O. 1990, c. O.2, s. 3(1), Hryniak v. Mauldin, 2014 SCC 7, Rules of Civil Procedure, Rule 20.02(1)

Ariss v. NORR Limited Architects & Engineers, 2019 ONCA 449

Keywords: Employment Law, Waiver of Service/Termination Pay, Damages, Mitigation, Employment Standards Act, 2000, S.O. 2000, c. 41

Downey v. Arey & Engineers, 2019 ONCA 450

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Summary Judgment, Fact-Finding Powers, Rules of Civil Procedure, Rule 20.04(2.1)

McRae Cold Storage Inc. v. Nova Cold Logistics ULC & Engineers, 2019 ONCA 452

Keywords: Contracts, Real Property, Commercial Leases, Interpretation, Option to Renew, Equitable Remedies, Relief from Forfeiture, 120 Adelaide Leaseholds Inc. v. Oxford Properties Canada Ltd., [1993] O.J. No 2801 (C.A), Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Company, [1994] 2 S.C.R. 490, 1383421 Ontario Inc. v. Ole Miss Place (2003), 67 O.R. (3d) 161 (C.A), Mapleview-Veterans Drive Investments Inc. v. Papa Kerrollous IV Inc., 2016 ONCA 93

Newell v. Sax & Engineers, 2019 ONCA 455

Keywords: Solicitor and Client, Assessment of Accounts, Quantum Meruit, Reasonable Apprehension Of Bias, Solicitors Act, R.S.O. 1990, c. S. 15, s. 3, Committee for Justice and Liberty et al. v. National Energy Board et al. (1976), [1978] 1 S.C.R. 369, Cohen v. Kealey (1985), 10 O.A.C. 344 (C.A.)

Short Civil Decisions

Distributions Katrina Inc. v. Enroute Imports Inc., 2019 ONCA 441

Keywords: Civil Procedure, Partial Summary Judgment, Equitable Set-Off

Rallis v. Myers, 2019 ONCA 437

Keywords: Civil Procedure, Striking Pleadings, Vexatious Litigants, Frivolous, Vexatious, Abuse of Process, Judicial Immunity, Rules of Civil Procedure, Rule 2.1.01, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5(6), Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497

Alharayeri v. Wilson, 2019 ONCA 438

Keywords: Appeal Book Endorsement

Greenwoods GRM LLP v. Datawind Inc., 2019 ONCA 440

Keywords: Appeal Book Endorsement

Talbot v. Nourse, 2019 ONCA 436

Keywords: Appeal Book Endorsement, Limitations Act, 2002

Sidhu v. Aviva Canada Inc., 2019 ONCA 444

Keywords: Appeal Book Endorsement, Standard of Review, Igbokwe v. HB Group Insurance Management Ltd., 2001 CanLII 3804 (ONCA), Walker v. Allstate Insurance Co., 2002 CanLII 44970 (ONCA)

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