Ontario Court Of Appeal Summaries (June 3 – 7, 2019)

Good evening.

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

In Holly v. Greco, the Court upheld the motion judge's order striking the husband's Answer for failure to comply with a support order, but varied the order to provide the husband the opportunity to participate at the trial. Congratulations to our own Jim Edney on the excellent result obtained for our client.

In Donovan v. Sherman Estate, the Court granted a stay of its May 9 order unsealing the Sherman estate court file pending the estate's leave to appeal application to the Supreme Court.

Other topics covered this week included sale of goods, wrongful dismissal, family law (access by the birth mother to an adopted child) and municipal law (interpretation of a zoning bylaw relating to lot coverage).

Wishing everyone a nice weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Southside Construction Management Limited v. Ingersoll (Town), 2019 ONCA 459

Keywords: Municipal Law, Zoning By-Laws, Interpretation, Lot Coverage

1004335 Ontario Ltd. (A.D. Metro) v. DW Ditigal Wireless LP, 2019 ONCA 461

Keywords: Contracts, Sale of Goods, Implied Condition of Fitness for Purpose, Implied Condition of Merchantability, Damages, Remoteness, Mitigation, Sale of Goods Act, R.S.O. 1990, c. S.1, s. 15, Skyway Equipment co. v. Guardian Insurance Co. of Canada (2005), 49 CLR (3d) 94 (Ont SCJ)

A.R. v. M.B., 2019 ONCA 462

Keywords: Family Law, Adoption, Access, Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 21(1), Child and Family Services Act, R.S.O. 1990, C. c.11, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14

Holly v. Greco, 2019 ONCA 464

Keywords: Family Law, Civil Procedure, Orders, Child Support, Enforcement, Striking Pleadings, Adjournments, Family Law Rules, Rule 1(8.4), Khimji v. Danani (2004), 69 O.R. (3d) 790 (C.A.), Mullin v. Sherlock, 2018 ONCA 1063

Donovan v. Sherman Estate, 2019 ONCA 465

Keywords: Civil Procedure, Appeals, Orders, Stay Pending Appeal, Supreme Court Act, 1985, c. S-26, ss 65.1, Livent Inc. v. Deloitte & Touche, 2016 ONCA 395 (in Chambers), Baier v. Alberta, 2006 SCC 38 (in Chambers), Provincial Court Judges' Association of British Columbia v. British Columbia (Attorney General), 2018 BCCA 477 (in Chambers)

Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation), 2019 ONCA 469

Keywords: Contracts, Employment Law, Contracts of Employment, Wrongful Dismissal, Damages, Payment in Lieu of Notice, Statutory Entitlement, Employment Standards Act, 2000, S.O. 2000, c. 41, Brake v. PJ-M2R Restaurant (2017), 135 O.R. (3d) 561 (C.A.)

Short Civil Decisions

Laureat A+ Ltd. c. Borg, 2019 ONCA 456

Keywords: Contracts, Real Property, Commercial Leasess, Termination, Unjust Enrichment, Civil Procedure, Appeals, Standard of Review

Ostainvil v. Conseil des écoles publiques de l'Est de l'Ontario, 2019 ONCA 460

Keywords: Labour Law, Arbitration

Criminal Decisions

18. v. Bao, 2019 ONCA 458

    Keywords: Criminal Law, Possession of Marijuana, Evidence, Identification, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s.5(3)(a), Criminal Code, s.686(1)(a)(i), R. v. Quercia (1990), 75 O.R. (2d) 463 (C.A.), R. v. Malcolm (1993), 13 O.R. (3d) 165 (C.A.), R. v. Miaponoose (1996), 30 O.R (3d) 419 (C.A.), R. v. Hibbert, 2002 SCC 39, R. v. Lewis, 2018 ONCA 351, R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), R. v. Gough, 2013 ONCA 137, R. v. Pimentel (1995), 85 O.A.C. 395 (C.A.), R. v. Tat (1997), 117 C.C.C. (3d) 481 (C.A.), R. v. Goran, 2008 ONA 195, 234 O.A.C. 283, Mezzo v. The Queen, [1986] 1 S.C.R. 802, R. v. Virgo, 2016 ONCA 792, R. v. Boast, 2019 ONCA 19, R. v. Jack, 2013 ONCA 80, R. v. Ellis, 2008 ONCA 77, R. v. MacIntosh (1997), 35 O.R. (3d) 97 (C.A.), R. v. Richards (2004), 70 O.R. (3d) 737 (C.A.), R. v. Mey, 2011 ONCA 288, Rex. v. Goldhar; Rex v. Smokler (1941), 76 C.C.C. 270 (Ont. C.A.), Rex. v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.), R. v. Araya, 2015 SCC 11, R. v. Li, 2013 ONCA 81, R. v. Henry, 2005 SCC 76, R. v. Prokofiew, 2010 ONCA 423, Canada (Attorney General) v. Bedford, 2012 ONCA 186

18. v. Cox, 2019 ONCA 466

    Keywords: Criminal Law, Sentencing, Dangerous Offenders, R v. Boutilier, [2017] 2 SCR 936

18. v. Murororunkwere, 2019 ONCA 463

    Keywords: Criminal Law, Sentencing, Standard of Review, R v. McKnight, 44 OR (3d) 263 (CA), R v. Lacasse, 2015 SCC 64

18. v. Payette-McLean, 2019 ONCA 471

    Keywords: Criminal Law, Sentencing

18. v. Lo Verde, 2019 ONCA 467

    Keywords: Criminal Law, Sexual Assault, Break and Enter, Forcible Entry, Defences, Intoxication, Criminal Code, s.72(1)

18. v. Morgan, 2019 ONCA 468

    Keywords: Criminal Law, Receiving Financial Benefit from Sexual Services, Criminal Code, s. 286.2(1)

18. v. Gouldbourne, 2019 ONCA 472

    Keywords: Criminal Law, Robbery, Use of an Imitation Firearm, Break and Enter, Sentencing, Criminal Code, s.85(4))

    Ontario Review Board

    Afifi (Re), 2019 ONCA 457

    Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Conditional Discharges, Mental Health Act, R.S.O. 1990, c. M.7, Criminal Code, Part XX.1

    CIVIL DECISIONS

    Southside Construction Management Limited v. Ingersoll (Town), 2019 ONCA 459

    [Feldman, MacPherson and Simmons JJ.A.]

    Counsel:

    J.D. Goudy, for the appellant

11. Nenniger, for the respondent

    FACTS:

    Southside Construction Management Limited owns a 33-acre parcel of vacant land in Ingersoll, adjacent to Highway 401. It is designated a Highway Commercial Zone ("HC") under s. 12 of the Zoning By-Law. In addition, a site-specific provision, s. 12.3.9, designates the land as Highway Commercial Zone 9 ("HC-9"). Under the general provisions applicable to the HC Zone, Southside's land is subject to a lot coverage cap of 40% for buildings. However, s. 12.3.9.4, specifically applicable to the HC-9 zone, also imposes a cap on the "gross leasable commercial floor area" of a "community shopping centre". Section 12.3.9.2.4 reads as follows:

    The gross leasable commercial floor area for a community shopping centre containing permitted uses in the HC-9 Zone shall not be greater than 4,645 m2 (50,000 ft2).

    "Community shopping centre" is not defined in the Zoning By-Law. However, "Shopping Centre" is defined in the definition section of the Zoning By-Law, s. 4:

    In this By-law, unless the context requires otherwise: ... "SHOPPING CENTRE", means a building or group of buildings designed, developed, owned and managed as a unit containing six or more separated spaces for lease or occupancy by commercial uses or business or professional offices.

    Southside argued that a "community shopping centre" must be a type of "shopping centre", and therefore must consist of 6 or more separated spaces. It was on this basis that Southside made an application for a declaration concerning the interpretation of s. 12.3.9.2.4 that does not prohibit development for permitted uses greater than 4,645 m2. The application judge dismissed Southside's application, and Southside appeals this decision.

    ISSUES:

    (1) Did the application judge err by rendering the definition of "shopping centre" in s. 4 of the Zoning By-Law surplusage?

    (2) Did the application judge err by treating the policies in the Official Plan, rather than the terms of the Zoning By-Law, as the applicable law?

    (3) In rejecting its interpretation of the Zoning By-Law, did the application judge render the term "community shopping centre" vague to the extent that s. 12.3.9.2.4 becomes void for uncertainty?

    HOLDING:

    Appeal dismissed.

    REASONING:

    (1) No. The Court noted that the application judge identified another provision of s. 12 of the Zoning By-Law that uses the exact term "shopping centre", albeit without italics. Particularly when considered in light of the application judge's other reasons, the Court saw no error in his conclusion that some meaning must...