Top 5 Civil Appeals From The Court Of Appeal - June 2015

The first half of 2015 is almost in the books, and it has been an eventful time. The second half of 2015 looks to be even more eventful as we move to a federal election. Hopefully, we will all get some time to pause over the summer. The Court of Appeal continued its own eventful 2015, releasing several interesting and important decisions in May, including what will now likely be the leading decision in Canada on investigative receiverships. In addition, the Court released decisions in May dealing with employment law, interpretation of insurance policies, contractual interpretation and the scope of the oppression remedy.

1. King v. 1416088 Ontario Ltd. (Danbury Industrial), 2015 ONCA 312 (Simmons, Gillese and Rouleau JJ.A.), May 4, 2015

2. Allstate Insurance Company of Canada v. Aftab, 2015 ONCA 349 (Strathy C.J.O., LaForme and Tulloch JJ.A.), May 15, 2015

3. Akagi v. Synergy Group (2000) Inc., 2015 ONCA 368 (Simmons, Blair and Juriansz JJ.A.), May 22, 2015

4. Gold Leaf Products Ltd. v. Pioneer Flower Farms Ltd., 2015 ONCA 365 (Strathy C.J.O., LaForme and Tulloch JJ.A.), May 22, 2015

5. Rea v. Wildeboer, 2015 ONCA 373 (Weiler, Sharpe and Blair JJ.A.), May 26, 2015

1. King v. 1416088 Ontario Ltd. (Danbury Industrial), 2015 ONCA 312 (Simmons, Gillese and Rouleau JJ.A.), May 4, 2015

   Jack King had worked as an accountant for the Danbury group of companies for 38 years when he was terminated without cause in October, 2011. King was formally employed by a series of Danbury corporations, through which the Danbury group carried on a liquidation and auctioneering business in Toronto. At the time of his termination, King was 72 years old. He was given no compensation for his wrongful termination: no pay in lieu of notice, no statutory termination pay and no pension payments.

   King sued the appellant companies, a number of Danbury corporations for which he had worked over the course of his career.

   With issues relating to the Employment Standards Act, 2000, ("ESA") S.O. 2000, chapter 41 settled prior to trial, what remained to be determined was which of the Danbury corporations were liable for the amounts King was owed, and whether King was entitled to the retirement compensation promised under a pension agreement which he entered into in 1981 with the Danbury company that was his formal employer at the time. Under the terms of that agreement, King was entitled to monthly compensation for life, as long as he continued to be employed by the company or its successors until he was 65.

   The trial judge found that all of the appellant companies were King's common employer and were accordingly jointly and severally liable for the monies owed to him, including the benefits due under the pension agreement, which he deemed valid. The appellant companies submitted that the trial judge erred in both of these conclusions.

   The Court of Appeal observed that the trial judge correctly referred to the principles it set out in Downtown Eatery (1993) Ltd. v. Ontario (2001), 54 O.R. (3d) 161 (C.A.), and made findings of fact that revealed the interconnection among the Danbury companies and King's contributions to all of them. Those findings confirmed that although the Danbury company known as DSL Commercial did not officially begin operations until after the termination of King's employment, King did work for DSL prior to its formal launch. The trial judge concluded that DSL has "too many attributes in common" with the other Danbury defendants to escape from liability and is, in fact, "the current incarnation" of the business which employed King for nearly four decades.

   The Court agreed with the trial judge that there was a sufficient relationship among the appellant companies that they should be regarded as one for the purpose of liability for the wrongful termination of King's employment.

   The Court went on to find that once the trial judge found that the pension agreement was valid and that King had provided essentially the same services throughout his 38 years of employment with the various Danbury companies, the appellant companies were jointly and severally liable for the amounts owing under that agreement. The fact that the appellant companies did not themselves execute the pension agreement did not shield them from liability.

   The Court deemed irrelevant the appellant companies' submissions with respect to section 4 of the ESA, noting that issues surrounding the ESA were resolved prior to trial and formed no part of the judgment. Regardless, the Court rejected the appellants' claim that section 4 of the ESA modified the principles in Downtown Eatery.

2. Allstate Insurance Company of Canada v. Aftab, 2015 ONCA 349 (Strathy C.J.O., LaForme and Tulloch JJ.A.), May 15, 2015

   Sumaira Aftab's young son Sameer was hit by a car driven by the respondent Meng Chiu. When she commenced an action against Chiu on Sameer's behalf, Chiu counterclaimed against Aftab for indemnification, alleging that she had failed to take reasonable steps to ensure her son's safety.

   Aftab's auto insurer, Unifund Assurance Company, and her homeowner insurer, Allstate Insurance Company of Canada, brought separate proceedings for declarations that they had no duty to defend the counterclaim or to provide coverage for damages. The applications were heard together, at the conclusion of which the judge found that both insurers had a duty to defend Aftab from the counterclaim.

   Allstate appealed, arguing that coverage for the counterclaim was excluded by its homeowner policy. The policy states that the homeowner is not insured for claims made against her arising from bodily injury to any person residing in the household. Allstate submitted that this was one such claim.

   The Court of Appeal observed that the counterclaim for inadequate supervision fell within the broad scope of coverage such that Allstate had an obligation to defend...