Ontario Court Of Appeal Summaries (September 3 – 6 2019)

Good afternoon,

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

In Hearn v McLeod Estate, the sale of a forged Norval Morrisseau painting and the expert evidence surrounding its authenticity was at issue. In allowing the appeal, the Court of Appeal held that the trial judge's conclusions about the expert's authentication process, which were informed by the trial judge's own personal research, were flawed and had resulted in a denial of natural justice.

In Donleavy v Ultramar Ltd, the Court dealt with the issues of negligence and apportionment of liability in a case involving a home heating oil spill.

Other topics covered this week included stay pending appeal in a high conflict child relocation/custody dispute, dismissal for delay, a dismissal of a challenge to capacity to execute powers of attorney for care and property, and striking pleadings in a limitation period context.

Have a nice weekend.

Table of Contents

Civil Decisions

Donleavy v. Ultramar Ltd., 2019 ONCA 687

Keywords: Torts, Negligence, Causation, "But For" Test, Material Contribution Test, Apportionment of Fault, Joint and Several Liability, Contributory Negligence, Clements v Clements, 2012 SCC 32, Resurfice Corp v Hanke, 2007 SCC 7, Blackwater v Plint, 2005 SCC 58, Ingles v Tutkaluk Construction Ltd, [2000] 1 SCR 298

Hearn v. McLeod Estate Ltd., 2019 ONCA 682

Keywords: Contracts, Sale of Goods, Implied Conditions and Warranties, Breach of Warranty, Sale by Description, Fraud, Damages, Expectation Damages, Punitive Damages, Expert Evidence, Civil Procedure, Procedural and Natural Justice, Extrinsic Evidence, Sufficiency of Reasons, Reasonable Apprehension of Bias, Pfizer Co v Deputy Minister of National Revenue (Customs & Excise), [1977] 1 SCR 456, R v Sheppard, 2002 SCC 26, Phillips v Ford Motor Co of Canada, [1971] 2 OR 637, Sale of Goods Act, RSO 1990, c S1, s. 51, Langille v Keneric Tractor Sales Limited, [1987] 2 SCR 440, Bruno Appliance and Furniture Inc v Hryniak, 2014 SCC 8

N.S. v. R.M. Ltd., 2019 ONCA 685

Keywords: Family Law, Custody and Access, Joint Custody, Shared Custody, Civil Procedure, Appeals, Stay Pending Appeal, RJR-Macdonald v Canada (AG), [1994] 1 SCR 311, CS v MS, 2010 ONCA 196, Van de Perre v Edwards, 2001 SCC 60

Erland v. Ontario Ltd., 2019 ONCA 689

Keywords: Civil Procedure, Dismissal for Delay, Summary Judgment, Rules of Civil Procedure, Rules 48.14(1), (5), and (7), Kara v Arnold, 2014 ONCA 871, Stokker v Storoschuk, 2018 ONCA 2

Lewis v. Lewis Ltd., 2019 ONCA 690

Keywords: Wills and Estates, Powers of Attorney, Capacity, Undue Influence, Suspicious Circumstances, Fresh Evidence, Substitute Decisions Act, 1992, S.O. 1992, c. 30, Knox v Burton (2004), 6 ETR (3d) 285, Starson v Swayze, 2003 SCC 32, Hall v Bennett Estate (2003), 64 OR (3d) 191 (CA), Vout v Hay, [1995] 2 SCR 876, FH v McDougall, 2008 SCC 53

Davidoff v. Sobeys Ontario Ltd., 2019 ONCA 684

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Striking Pleadings, Determination of Question of Law, Limitation Periods, Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, Rules of Civil Procedure, Rules 14.03(2) and 21.01(1)(a), Kaynes v. BP, P.L.C., 2018 ONCA 337

Tarantino v. Galvano Ltd., 2019 ONCA 699

Keywords: Wills and Estates, Wills, Interpretation, Compensation, Personal Care, Occupancy Rent

Short Civil Decisions

Watto v. Immigration Consultants of Canada Regulatory Council, 2019 ONCA 683

Keywords: Civil Procedure, Appeals, Factum

Sammut v. Doheny, 2019 ONCA 693

Keywords: Real Property, Adverse Possession

Makwana v. Bishnu, 2019 ONCA 695

Keywords: Family Law, Spousal Support, Child Support, Fraudulent Conveyances, Costs

Criminal and Provincial Offenses Decisions

Ontario (Environment, Conservation and Parks) v. Thomas Cavanagh Construction Limited, 2019 ONCA 686

Keywords: Provincial Offences, Appeals, Leave to Appeal, Sentencing, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131(2)

R. v. S.H. (Publication Ban), 2019 ONCA 669

Keywords: Criminal Law, Evidence, Admissibility, Cell Phones, Opinion Evidence, Rule in Browne v Dunn, Canada Evidence Act, s. 31.1, 31.2, 31.3(a) and 31.3(b), Browne v. Dunn (1893), 6 R. 67 (H.L.)

R. v. E.C. (Publication Ban), 2019 ONCA 688

Keywords: Criminal Law, Sexual Interference, Sentencing, R v Lacasse, 2015 SCC 64, Criminal Code, s. 718.01

R. v. B.J.T. (Publication Ban), 2019 ONCA 694

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Summary Conviction, Sentencing, R. v. Nur, 2015 SCC 15, Criminal Code, s. 151(a), Canadian Charter of Rights and Freedoms, s. 12

R. v. Lisenco, 2019 ONCA 691

Keywords: Criminal Law, Failure to Comply with a Recognizance, Breaking and Entering, Theft, Sentencing, Ineffective Assistance of Counsel

R. v. Melnyk, 2019 ONCA 697

Keywords: Criminal Law, Private Prosecution, Mandamus, Certiorari

Ontario Review Board

Sheikh (Re), 2019 ONCA 692

Keywords: Ontario Review Board, Not Criminally Responsible, Conditional Discharge, R. v. Winko, [1999] 2 S.C.R. 625


Donleavy v Ultramar Ltd, 2019 ONCA 687

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


David Zuber and James Tausendfreund, for the appellants/respondents by way of cross-appeal, Kilpatrick Fuels Limited and JB Todd J. Burke and Benoit M. Duchesne for the appellant/respondent by way of cross-appeal, Ultramar Ltd. S. Daniel Baldwin and R. Steven Baldwin, for the respondents/appellants by way of cross-appeal, SD and KE


The respondents rented their home to another couple in January 2008. In June 2008, a 900-litre fuel tank located outside the home failed and spilled its contents. The tank was manufactured for indoor use only and had been on the property since before the respondents purchased it. The appellant Ultramar Ltd. ("Ultramar") supplied oil during the relevant period, first under a fuel oil delivery contract with the respondents and then, in January 2008, with the tenants of the respondents. The last delivery was one month prior to the spill. Prior to entering into a supply contract, Ultramar was required to inspect the tank to determine if it complied with the regulatory regime then in force. This inspection was subcontracted to the appellant Kilpatrick Fuels Limited ("Kilpatrick"). Kilpatrick's employee, the appellant JB ("JB"), conducted an inspection in 2002 but his report which was submitted to Ultramar failed to indicate the age of the tank or that it was labelled for indoor use only yet installed outdoors.

A follow up inspection was conducted by a different Kilpatrick employee one week later and his report indicated that the tank was more than 20 years old and that he had rectified two separate elements of non-compliance.

Ultramar received the reports, noted no problems, and commenced supplying the fuel oil by a subcontractor on at least 23 occasions prior to the spill. Despite the requirement that a visual inspection of the tank be completed on every delivery, at no time did the subcontractor notify Ultramar that the tank was labelled for indoor use but was located outside. The spill was ultimately caused by corrosion from the inside out because of water that accumulated in the bottom of the tank.

The respondents commenced an action in tort and for breach of contract against Kilpatrick, JB, and Ultramar. The appellants crossclaimed against each other for contribution and indemnity. The trial judge dismissed the breach of contract allegation. She apportioned 60% of the liability for the tort claim to Ultramar and the remaining 40% to the respondents. Ultramar was granted judgement in its crossclaim against Kilpatrick for contribution and indemnity with Kilpatrick being found liable to indemnify Ultramar for one half of the amount Ultramar was found liable to the respondents. Kilpatrick's crossclaim against Ultramar was dismissed. Ultramar appealed the finding of liability against it in tort, and Kilpatrick appealed the finding of liability to Ultramar in the crossclaim. The respondents appealed the finding of contributory negligence, the dismissal of the breach of contract claim, and the quantum of damages.


(1) Did the trial judge err in applying the "material contribution" instead of the "but for" test?

(2) Did the trial judge err in finding that Ultramar had a duty to inspect the oil tank during delivery and a duty under a Director's Order and that it breached those duties?

(3) Did the trial judge err in allocating fault as between the parties and with respect to contributory negligence?

(4) Did the trial judge err in failing to find Ultramar and Kilpatrick liable for breach of contract?

(5) Did the trial judge err in deciding to order general damages against Kilpatrick or in failing to award damages for loss of rental income?



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