Top 5 Civil Appeals From The Court of Appeal (April 2016)

1. Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 (Strathy C.J.O., LaForme and Huscroft JJ.A.), March 3, 2016

2. Neuberger v. York, 2016 ONCA 191 (Gillese, van Rensburg and Miller JJ.A.), March 8, 2016

3. Spence v. BMO Trust Company, 2016 ONCA 196 (Cronk, Lauwers and van Rensburg JJ.A.), March 8, 2016

4. Clarke v. Faust, 2016 ONCA 223 (Feldman, Juriansz and Brown JJ.A.), March 22, 2016

5. Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (Hoy A.C.J.O., Lauwers and Hourigan, JJ.A.), March 24, 2016

1. Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 (Strathy C.J.O., LaForme and Huscroft JJ.A.), March 3, 2016 When is a claim discovered for limitations purposes in the case of a continuing breach of contract? In this decision, arising from a dispute between a commercial landlord and tenant, the Court of Appeal considered this question. Pickering Square Inc. entered into an agreement with Trillium College Inc. to lease commercial space in a shopping centre for a five-year term, beginning on June 1, 2006. Pursuant to their agreement, Trillium covenanted not only to pay monthly rent but also to operate a vocational college on the premises continually, to maintain the premises throughout the term of the lease and to restore the premises following its expiration. After Trillium vacated the premises in December, 2007, Pickering sued for rent arrears and for Trillium's failure to conduct its business on the premises continually. The suit was settled, with Trillium agreeing to resume occupation of the leased premises by October 1, 2008. While Trillium paid rent for the duration of the lease, it did not operate its business continuously and failed to restore the premises when the lease ended on May 31, 2011. Following the expiry of the lease, Pickering brought an action against Trillium for damages arising from its failure to occupy the premises and conduct its business continuously from October 1, 2008 to May 31, 2011, as well as its breach of its covenant to restore the premises. Trillium responded with a motion for summary judgment, arguing that Pickering's claim was brought outside the two-year limitation period under section 4 of the Limitations Act, 2002, S.O. 2002, chapter 24, Schedule B. The motion judge held that Trillium's breach of the covenant to occupy the premises and operate its business continuously was of a continuing nature, so that each day of the breach gave rise to a fresh cause of action. Accordingly, only a portion of Pickering's claim against Trillium for breach of its covenant - that concerning the breach that occurred more than two years prior to commencement of the action - was barred by the Limitations Act. The motion judge also held that Pickering's claim for damages for breach of the covenant to restore the premises was not time-barred. Pickering appealed the judgment but did not pursue its appeal. The Court of Appeal therefore heard only Trillium's cross-appeal of the partial summary judgment. Trillium submitted that the motion judge erred by finding a continuing breach of the agreement giving rise to a new cause of action and a new limitation period each day that it failed to carry on business at the leased premises. It argued that its breach of the covenant to operate its business continuously was complete on October 1, 2008, the first day that it failed to resume occupation of the leased premises and operate its business, and that each subsequent day that it failed to operate its business was not a separate breach but rather an instance of additional damages. A continuing breach of contract requires a succession or repetition of separate acts, while this was a case of a single act with continuing consequences. Accordingly, in the appellant's view, Pickering's claim was statute-barred because it was not brought within two years of the October 1, 2008 breach. Writing for the Court, Huscroft J.A. rejected this submission, noting that Trillium did not breach a covenant to perform a single obligation due at a specific time. Nor did it fail to fulfill an obligation which it agreed to perform periodically. Rather, it breached a continuing obligation under the contract, a covenant to operate its business continuously – "at all times" - for the duration of the lease. Justice Huscroft noted that Trillium's argument that breach of its covenant to operate its business continuously established a complete cause of action as of October 1, 2008, overlooked the consequences of its breach. In the face of Trillium's breach of its covenants under the contract, Pickering could either cancel the lease or affirm it and require performance. It chose the latter and, as a result, the parties were required to perform their obligations under it as they became due. Huscroft J.A. pointed out that Trillium could have resumed performance of its obligations under the lease at any time prior to the end of the term by carrying on its business at the leased premises. It did not do so. The motion judge therefore properly concluded that a fresh cause of action accrued every day that the breach continued and that Trillium failed to carry on its business in accordance with the covenant. The limitation period applied on a "rolling basis", with a fresh cause of action accruing each day the breach continued with the limitation period for that day's claim expiring two years from that date. Accordingly, Picking was entitled to claim damages for breach of the covenant for the period going back two years from the commencement of its action on February 16, 2012: the period that ran from February 16, 2010, until the lease expired on May 31, 2011. Trillium also argued that Pickering's restoration claim was related to its obligations during the lease rather than upon its expiry, and was therefore discoverable as of October 1, 2008, and barred by the two-year limitation period under section 4 of the Limitations Act. Huscroft J.A. rejected this submission, holding that the motion judge was entitled to find that the respondent was claiming only for the breach of the covenant to repair and restore the premises at the end of the lease. Accordingly, the limitation period for this claim began to run on May 31, 2011. Since the action was commenced within two years of this date, the claim was not statute-barred. 2. Neuberger v. York, 2016 ONCA 191 (Gillese, van Rensburg and Miller JJ.A.), March 8, 2016 When Chaim Neuberger died in September, 2012, at the age of eighty-six, he left a real estate empire worth over $100 million. He also left behind two children and several grandchildren who would...