COURT OF APPEAL SUMMARIES (January 8 – January 12)

In Zafar v Azeem, the mother’s appeal against a decision that ordered her three-year-old child to return to Pakistan, where the father claimed the child was habitually resident, was allowed. She successfully argued procedural unfairness due to the motion judge’s failure to allow for cross-examinations or a viva voce hearing of contested evidence and failure to properly consider the child’s best interests, habitual residence, and risk of serious harm. The mother was also successful in setting aside the recognition of the divorce the husband obtained in Pakistan, which had been obtained unilaterally and without sufficient notice.

In Lyng v. Ontario Place Corporation, Ontario Place unsuccessfully appealed the trial judge’s decision to find it 75% responsible for the respondent’s slip and fall on its premises. In order to cross Lakeshore Boulevard following a concert during which it had rained, the respondent and other concertgoers decided to go down a wet hill abutting the boulevard after an Ontario Place security guard had closed the bridge passing over the Boulevard.

In Espartel Investments Limited v. Metropolitan Toronto Condominium Corporation No. 993, the Court dismissed the appellant condominium corporation’s appeal on a discoverability issue regarding the overpayment of hydro bills by the respondent hotel. The hotel sued for unjust enrichment after it discovered that a cost-sharing agreement between the hotel and the condo corp inequitably allocated hydro usage to the hotel.

In Cuthbert v. Nolis, the Court dismissed an appeal from a review of a Final Order regarding parenting, indicating that while the granting of a right to a review under a final order is rare, it can be appropriate in certain circumstances. When there is a review provided for in a final order, there is no need to show a material change in circumstances.

In Elbassiouni v. Brenn, the Court dismissed an appeal from a summary judgment dismissing a claim regarding deficiencies in a home following closing of the purchase. This was a Simplified Procedure matter and the motion judge excluded transcript evidence from cross-examinations because Rule 76.04 does not permit cross-examinations on affidavits in Simplified Procedure. The Court agreed that the motion judge was correct to exclude the evidence.

In Duraisami v. Yaworski, the Court dismissed an appeal from a summary judgment on a guarantee.

Finally, in Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., the Court upheld the dismissal by the motion judge of an anti-SLAPP motion against Canadian Tire. The claim by Canadian Tire was for fraud and other intentional torts against third-party vendors who were alleged to have falsely asserted entitlement to payment for work under Canadian Tire’s customer return program. The defendants claimed that Canadian Tire was selling defective and dangerous tools not approved by the Canadian Standards Association, and that they were sued by Canadian Tire for the purpose of stopping them from bringing this to the public light. The motion judge and the Court found that Canadian Tire’s claim did not target the defendants’ expression on a matter of public interest.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Cuthbert v. Nolis, 2024 ONCA 21

Keywords: Family Law, Parenting Time, Review, Civil Procedure, Evidence, Documents, Admissibility, Hearsay, Amending Pleadings, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, s 29, Family Law Rules, O. Reg. 114/99, r 11(3), M. (K.A.A.) v. M. (J.M.), 2005 NLCA 64, Sappier v. Francis, 2004 NBCA 70, Fournier v. Fournier, 2020 ONSC 606, Y.M.S. v. R.O.S., 2021 ONSC 6684, Leskun v. Leskun, 2006 SCC 25, Fisher v. Fisher, 2008 ONCA 11, Children and Family Services v. G.S., 2011 ONSC 1732, Studley v. Studley, 2022 ONCA 810, Davidson v. Davidson, 2021 ONSC 7459, Alajajian v. Alajajian, 2021 ONCA 602, Johanson v. Hinde, 2016 ONCA 430, Palmer v. The Queen, [1980] 1 S.C.R. 759, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Zafar v. Azeem, 2024 ONCA 15

Keywords: Family Law, Parenting, Relocation, International Child Abduction, Foreign Divorces, Civil Procedure, Procedural Fairness, Divorce Act, RSC 1985, c. 3 (2nd Supp), Children’s Law Reform Act, RSO 1990, c. C 12, s. 22, Family Law Rules, O. Reg. 114/99, r. 37.2(3), Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Geliedan v Rawdah, 2020 ONCA 254, Ojeikere v Ojeikere, 2018 ONCA 372, Office of the Children’s Lawyer v Balev, 2018 SCC 16, F v N, 2022 SCC 51, Pollastro v Pollastro (1999), 43 OR (3d) 485 (CA)

Espartel Investments Limited v. Metropolitan Toronto Condominium Corporation No. 993, 2024 ONCA 18

Keywords: Contracts, Real Property, Condominiums, Cost-Sharing Agreements, Restitution, Unjust Enrichment, Defences, Equitable Set-Off, Civil Procedure, Limitations Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., Van Allen v. Vos, 2014 ONCA 552, 121 O.R. (3d) 72, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, 406 D.L.R. (4th) 252

Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Costs, Courts of Justice Act, RSO 1990, c C 43, s 137.1, Schwartz et al. v Collette, 2021 ONSC 2138, Brad-Jay Investments Limited v Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Algra v Comrie Estate, 2023 ONCA 811, Veneruzzo v. Storey, 2018 ONCA 688

Lyng v. Ontario Place Corporation, 2024 ONCA 23

Keywords: Torts, Negligence, Occupier’s Liability, Slip and Fall, Duty of Care, Standard of Care, Causation, “But For” Test, Damages, Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Moore v. Sweet, 2017 ONCA 182, Housen v. Nikolaisen, 2002 SCC 33, Waldick v. Malcolm, [1991] 2 S.C.R. 456, Malcolm v. B.C. Transit (1988), 32 B.C.L.R. (2d) 317 (C.A.), Winters v. Haldimand (County), 2015 ONCA 98, Athey v. Leonati, [1996] 3 S.C.R. 458, Clements v. Clements, 2012 SCC 32, Ault v. Canada (Attorney General), 2011 ONCA 147, Lazare v. Harvey, 2008 ONCA 171, Woelk  v. Halvorson, [1980] 2 S.C.R. 430, S.M. c. Sternthal Katznelson Montigny, 2021 QCCA 673, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58

Elbassiouni v. Brenn, 2024 ONCA 28

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Simplified Procedure, Summary Judgement, Evidence, Admissibility, Rules of Civil Procedure, rr. 39.02, 76.04

Duraisami v. Yaworski, 2024 ONCA 27

Keywords: Breach of Contract, Civil Procedure, Simplified Procedure, Summary Judgment, Rules of Civil Procedure, r. 76, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, Manthandi v. ASCO Manufacturing, 2020 ONCA 485, Hryniak v. Mauldin, 2014 SCC 7, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Short Civil Decisions

Jakubov v. Sun Life Assurance Company of Canada, 2024 ONCA 16

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

CIVIL DECISIONS

Cuthbert v. Nolis, 2024 ONCA 21

[Brown, George and Monahan JJ.A.]

Counsel:

G. Joseph and J. McArthur, for the appellant

D. E. (T.) Cuthbert, acting in person

Keywords: Family Law, Parenting Time, Review, Civil Procedure, Evidence, Documents, Admissibility, Hearsay, Amending Pleadings, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, s 29, Family Law Rules, O. Reg. 114/99, r 11(3), M. (K.A.A.) v. M. (J.M.), 2005 NLCA 64, Sappier v. Francis, 2004 NBCA 70, Fournier v. Fournier, 2020 ONSC 606, Y.M.S. v. R.O.S., 2021 ONSC 6684, Leskun v. Leskun, 2006 SCC 25, Fisher v. Fisher, 2008 ONCA 11, Children and Family Services v. G.S., 2011 ONSC 1732, Studley v. Studley, 2022 ONCA 810, Davidson v. Davidson, 2021 ONSC 7459, Alajajian v. Alajajian, 2021 ONCA 602, Johanson v. Hinde, 2016 ONCA 430, Palmer v. The Queen, [1980] 1 S.C.R. 759, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The appellant mother and respondent father began cohabiting in 2010 and separated in 2014. They never married but had two children: a 12-year-old son, G, and a 10-year-old daughter, K. Following separation, the appellant acted as the custodial parent. The respondent had parenting time with the children on Wednesday evenings and every other weekend. He never accepted this parenting arrangement as fair and commenced an application. He also brought three motions seeking increased parenting time, all three of which were unsuccessful.

On August 1, 2018, after a ten-day trial, Goldstein J. awarded joint custody and ordered that the respondent continue to have parenting time on Wednesday evenings and every other weekend (the “2018 order”). However, Goldstein J. also held that the respondent “should, gradually, have the opportunity to increase access with a view to eventually reaching 50/50”.

On August 6, 2019, the respondent brought a motion to increase his parenting time on a step-up basis to an equal “2/2/5/5” schedule. On May 3, 2022, the trial judge found in favour of the respondent and awarded him gradually increasing parenting time, with the children ultimately residing with each parent on a “2/2/5/5” schedule.

issues:

1. Did the trial judge err by changing a final order when there was no material change in circumstances?
2. Did the trial judge err by admitting and relying on hearsay evidence?
3. Did the trial judge err by permitting the respondent to amend his pleadings at trial?
4. Did the trial judge err by failing to consider the best interests of the children?
5. Should the Court grant the appellant leave to admit fresh evidence relating to what has occurred during the respondents parenting time with the children?
6. Did the trial judge err in awarding costs?

holding:

Appeal dismissed.

reasoning:

1. No.

The 2018 order – despite being styled a final order – expressly permitted the respondent to apply for a change to the parenting schedule. It in no way required him to demonstrate a material change in circumstances.

While a review term in a final parenting time order is relatively rare, it is well established that courts have jurisdiction to impose them: M. (K.A.A.) at paras 25-36. A review term under a parenting time provision in a Final Order creates a rare and narrow exception to the usual requirement that a material change in circumstances be shown to vary a parenting order: Y.M.S. at para 70.

Courts have recognized that it is generally in the best interests of children to provide them “with stability in their lives following family breakdown” by incorporating “some sense of finality into child-care arrangements” M. (K.A.A.), at para. 26. For this reason, review terms are seldom ordered and must be 1) justified by genuine and material uncertainty at the time the original order is made, and 2) tightly delimited with respect to the issue or issues that will be subject to review: Leskun, at paras. 37-39. A court-ordered review “removes the need for an aggrieved parent to ‘guesstimate’ when things have reached the point that he or she must return the matter to court”: M. (K.A.A.), at para. 26. The Court therefore established that in some circumstances, such as this case, a review term may be appropriate but should be limited to situations where the parties’, or children’s, circumstances were uncertain at the time the original order was made. At the time of the 2018 order it was unclear what was causing G’s anxiety, nor was the extent of it well understood. The Court noted that while the fact a child is aging will never, on its own, amount to a material change in circumstances, when the 2018 order was made Goldstein J. found that “[G’s] anxiety seems to have improved with age” which, in the Court’s view, made a review term reasonable.

The trial judge’s finding was rooted in and amply supported by the fact that G’s anxiety had “improved sufficiently” from 2018 until the order under appeal, and that it was “no worse when he is with [the respondent] than with [the appellant]”. The trial judge carefully reviewed evidence relating to G’s anxiety from multiple sources, including G’s counsellor, G’s schoolteachers, and the s. 112 report from the Office of the Children’s Lawyer (“OCL”). The Court concluded that his factual findings were reasonable and entitled to deference.

2. No.

The appellant’s hearsay complaint was in relation to the trial judge’s decision to admit a letter from Dr. Noble, a psychologist who had met with G, which expressed her view that G had not required long-term counselling or more serious treatment for his anxiety. Apart from the fact that the appellant cross-examined the respondent on the content of this letter, the Court observed that the appellant had not objected to its admission, and that it was referenced by the OCL clinician in her report. The Court noted that there was a basis upon which the trial judge could have assessed the level of G’s anxiety, including the respondent’s evidence, the absence of a formal diagnosis, and the indication that G was doing well in school.

3. No.

As it had not given rise to any prejudice, or otherwise disadvantage the appellant, the trial judge had not erred by permitting the respondent to amend his pleadings at trial. The appellant had ample opportunity to present her case and respond to the respondent’s position. Moreover, it is well-established that the test for leave to amend under r. 11(3) of the Family Law Rule strongly favours permitting amendments except in the clearest of cases: Studley, at para. 15; Davidson at para. 22. The trial judge reasonably concluded that this was not such a case, and his decision was entitled to deference: Studley, at para. 15.

4. No.

The best interest of the children is the only relevant consideration when assessing a child’s residence, decision-making authority, and parenting time. The trial judge cited the applicable provisions of the Children’s Law Reform Act and carefully considered the relevant factors. A trial judge’s factual findings are entitled to substantial deference, especially in family law cases, where the court can interfere “only where the fact related aspects of the [trial] judge’s decision … [exceed] a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Alajajian at para. 4.

The fresh evidence consisted primarily of correspondence relating to incidents during the respondent’s parenting time and the resulting impact on the children’s mental and physical health. According to the appellant, the fresh evidence directly dealt with the trial judge’s decision to ignore the voice of the children and the views of the OCL and failed to consider the results of G’s mental health assessment.

The appellant’s fresh evidence motion was dismissed. None of the evidence she sought to admit met the criteria in Palmer v. The Queen at p. 775. Rather, the evidence was essentially an extension of the evidence placed by the appellant before both Goldstein J. and the trial judge.

5. No.

An award of costs by a trial judge is an exercise in discretion and will only be set aside when the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton at para. 27. While the appellant was granted leave to appeal the trial judge’s costs award, it was reasonable and owed deference.

Zafar v. Azeem, 2024 ONCA 15

[Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.]

Counsel:

M. J. Stangarone and T. Guo, for the appellant

B. Olsen, N. Besner and V. Floca-Maxim, for the respondent

Keywords: Family Law, Parenting, Relocation, International Child Abduction, Foreign Divorces, Civil Procedure, Procedural Fairness, Divorce Act, RSC 1985, c. 3 (2nd Supp), Children’s Law Reform Act, RSO 1990, c. C 12, s. 22, Family Law Rules, O. Reg. 114/99, r. 37.2(3), Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Geliedan v Rawdah, 2020 ONCA 254, Ojeikere v Ojeikere, 2018 ONCA 372, Office of the Children’s Lawyer v Balev, 2018 SCC 16, F v N, 2022 SCC 51, Pollastro v Pollastro (1999), 43 OR (3d) 485 (CA)

facts:

The appellant (the “mother”) had applied for a declaration that the parties’ three-year-old child, “A”, was habitually resident in Ontario, seeking sole decision-making responsibility and primary residency for A. The respondent (the “father”) had brought an urgent motion, as he had already commenced an action for related relief set to be heard in Pakistan in six weeks. He requested the Superior Court to dismiss the mother’s application, arguing that the child was habitually resident in Lahore, Pakistan, and also sought an order to dispense with the mother’s consent for the child’s travel to Pakistan.

In response, the mother asked the Ontario court to retain jurisdiction and consider the father’s divorce in Pakistan as invalid. However, the father succeeded in all respects. The child was ordered to return to Pakistan within 14 days of the decision, with or without the mother’s consent, based on affidavit evidence. The motion judge concluded that the divorce obtained in Pakistan was valid, dismissed the mother’s application, and found that A was habitually resident in Pakistan, ordering her return to that jurisdiction. If the child was not returned, the mother’s consent to the child’s travel would be dispensed with.

issues:

1. Was the summary process relying only on affidavit evidence where there was significant conflict between the parties’ versions of events procedurally unfair?
2. Was s. 22 of the Children’s Law Reform Act improperly applied to determine the child’s habitual residence?
3. Was s. 23 of the CLRA improperly applied when the motion judge determined that no serious harm would come to the child if she was returned to Pakistan?
4. Did the motion judge err in recognizing the divorce in Pakistan based on the evidence provided?

holding:

Appeal allowed.

reasoning:

1. Yes.

The Court agreed with the appellant mother’s arguement that she was denied procedural fairness in the case’s handling, claiming the motion judge erred in addressing whether the child, A, was habitually resident in Ontario or Pakistan and whether returning to Pakistan would pose a serious harm risk. The judge also neglected to consider whether ordering A’s return to Pakistan was in her best interests. The mother contended that due to conflicting affidavit evidence, these issues should not have been decided without proper time for preparation, including cross-examination or viva voce testimony. The scheduling judge had accepted the father’s urgency claims, leading to an expedited hearing without cross-examinations. This approach led to unresolved conflicts in key evidence concerning habitual residence and serious harm. As a result, the mother was denied procedural fairness and natural justice in determining A’s habitual residence, the risk of serious harm, and the decision to order A’s return to Pakistan without considering her best interests, especially as Canada does not recognize Pakistan under the Hague Convention.

2. Yes.

The judge identified “habitual residence” as crucial for deciding the child’s jurisdiction under the CLRA. The parents disagreed on the child’s habitual residence: the father claimed A lived with her mother in Pakistan with his consent after they agreed to separate, while the mother insisted the trip to Pakistan was temporary. The motion judge, without making credibility findings, concluded A was habitually resident in Pakistan, based on conflicting affidavit evidence. The mother’s evidence suggested that A’s stay in Pakistan was prolonged due to the father not facilitating her return, casting the return to Canada in a different light, not as “self help” but as part of the original plan. This situation called for a deeper examination of parental intent in determining habitual residence, as a child’s world at A’s age revolves around their primary caregiver, in this case, the mother. Without testing the mother’s evidence, the motion judge was not in a position to accurately determine habitual residence, leaving open the possibility that A’s habitual residence could in fact be Ontario and not Pakistan.

3. Yes.

The Court stated that, even if the motion judge was right in determining Pakistan as A’s habitual residence, the allegations of serious harm to the mother required a more thorough evidentiary hearing before concluding that there was no serious risk of harm to A if returned. The mother alleged serious harm if A was returned to Pakistan, citing instances of physical and emotional violence from the father. These allegations included physical assaults during and after pregnancy, death threats, and financial neglect. The motion judge, however, dismissed these as irrelevant to A’s risk of serious harm, which was an error as such violence towards a parent can create serious harm to a child. Under the Divorce Act and CLRA, family violence must be considered when assessing a child’s best interests. The father’s argument that the court need not concern itself with domestic violence allegations was contrary to this requirement. A proper evidentiary hearing was needed to evaluate these allegations and consider their impact on A’s best interests. Even if A was deemed habitually resident in Pakistan, the court still needed to consider what order was in her best interests, such as possibly remaining in Ontario while parenting proceedings continued in Pakistan. This failure to consider A’s best interests based on a fully developed evidentiary record was a significant oversight.

4. Yes.

The mother argued that she was not habitually resident in Pakistan for a year before the divorce proceedings but was temporarily in Pakistan, making her a habitual resident of Ontario. Therefore, the Pakistan divorce could only be recognized under s. 22(3) of the Divorce Act, based on conflicts of laws and common law principles. She claimed the divorce was given without sufficient notice and was a unilateral “bare talaq” by the father, which should not be recognized for public policy reasons. The motion judge, despite requiring evidence about the legal process in Pakistan, accepted problematic evidence and should not have decided without giving the mother a chance to develop the record. The judge’s conclusion that the mother was habitually resident in Pakistan for a year preceding the divorce conflicted with the mother’s claim that her extended stay was due to the father preventing her return. Given the contradictory evidence, the motion judge needed to justify rejecting the mother’s version.

Espartel Investments Limited v. Metropolitan Toronto Condominium Corporation No. 993, 2024 ONCA 18

[Gillese, Trotter and Coroza JJ.A.]

Counsel:

J.H. Nasseri and G. Vance, for the appellant

J. Kulathungam and N. Panamaldeniya, for the respondent

Keywords: Contracts, Real Property, Condominiums, Cost-Sharing Agreements, Restitution, Unjust Enrichment, Defences, Equitable Set-Off, Civil Procedure, Limitations Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., Van Allen v. Vos, 2014 ONCA 552, 121 O.R. (3d) 72, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, 461 D.L.R. (4th) 613, Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, 144 O.R. (3d) 385, Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, 406 D.L.R. (4th) 252.

facts:

Since 1991, the parties co-occupying a mixed commercial and residential complex in Toronto have operated under a “Reciprocal Agreement,” under which they shared financial responsibility for utilities in the complex. The appellant, a condominium corporation, paid the hydro bill for the entire complex and then sent the respondent, a hotel, an annual invoice for its share of the utility costs.

Unfortunately, the formula was flawed with respect to its calculation of the respondent’s share of the electricity bill, leading to the respondent significantly overpaying for electricity. Between 2006 and 2015, the respondent overpaid by at least $ 730,000.

In 2015, the respondent became concerned over the amount of money it was paying for electricity. The appellant retained an engineering consultant to review the invoices and provide advice on electricity costs. On February 14, 2017, the consultant issued a report. The report identified the errors in the formulas used in the invoice. This report gave the parties actual knowledge of the errors for the first time.

On November 21, 2018, the respondent sued the appellant for unjust enrichment to recover its overpayments. The appellant defended primarily on the basis that the limitation period had passed, arguing that the respondent should have discovered the errors in the invoices more than two years prior to the commencement of the action. The appellant argued that, at the very latest, the errors became reasonably discoverable in 2015, when the then-new general manager felt that the invoices were charging for “outrageously high” electricity bills.

The trial judge found that the respondent did not have actual knowledge of the errors until 2017 and held that it would not have discovered the errors earlier through the exercise of reasonable due diligence.

issues:

1. Did the trial judge err in her discoverability analysis, by erroneously finding that the errors were not evident on the face of the invoices?
2. Did the trial judge err in law in her analysis of the respondent’s due diligence?
3. Did the trial judge impermissibly conflate actual and constructive knowledge?
4. Did the trial judge err in her determination of equitable set-off?

holding:

Appeal dismissed.

reasoning:

1. No.

The fact that errors are capable of being discovered does not necessarily start the running of the limitations clock. The trial judge was required to determine when a reasonable person with the respondent’s abilities and in its circumstances ought to have discovered the flaws in the invoices. It is reasonable discoverability − rather than the mere possibility of discovery − that triggers the limitation period under s. 5(1)(b) of the Limitations Act, 2002.

The appellant argued that the trial judge appeared to have misstated the nature of the errors on the spreadsheets in parts of her judgment. This submission appeared to rest on the premise that if the trial judge erred in one statement of fact, then her conclusion that the errors were not apparent on the face of the invoice was inherently suspect. There is no known authority for such a proposition, and the appellant provided none. In any event, it was clear from her reasons that the trial judge was relying on the description of the errors from the consultant’s report, which was the basis of an agreed statement of fact. The fact that the trial judge may have slightly misstated the errors in her judgment was of no moment.

2. No.

The trial judge misstated the law on reasonable discoverability. The low evidentiary standard referenced by the Court in Morrison related to a motion to add a defendant to an action. Morrison did not purport to set the overall standard to be met at trial. The standard of proof at trial remains the balance of probabilities. The trial judge thus erred to the extent she implied otherwise.

However, any such error was harmless, as it was not material. Immediately after the impugned statement of law, the trial judge found that there was “overwhelming evidence of a reasonable explanation and due diligence by the plaintiff.”

The appellant argued that the suspicion in 2015, of the hotel’s then-new manager becoming concerned by the high electricity bills should have weighed heavily in the assessment of the respondent’s due diligence. However, the fact that the respondent became more concerned about its electricity bill in 2015 does not diminish the appellant’s responsibility for its flawed calculations nor did it detract from the trial judge’s determination that the respondent acted with due diligence in its review of the invoices.

3. No.

The trial judge clearly separated the concepts of actual knowledge, constructive knowledge, and reasonable discoverability throughout her judgment. In summing-up her limitations analysis, the trial judge listed twenty-one reasons why she concluded that the claim was neither discovered nor reasonably discoverable prior to 2017. The appellant took issue with some of these reasons on the basis that they related only to the parties’ actual knowledge. But this was no error – the list explicitly related to actual knowledge and reasonable discoverability. Several of the twenty-one reasons relate only to the objective standard of reasonable discoverability, and not actual knowledge.

4. No.

The appellant challenged the trial judge’s finding on the “lack of juristic reason” element of the unjust enrichment test and her conclusion on equitable set-off. However, counsel did not press these submissions in oral argument, and they were found to have no merit. There was no basis to intervene with the trial judge’s determination on equitable set-off.

Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25

[Hourigan, Trotter and Copeland JJ.A.]

Counsel:

T. D. Marshall and M. Jarrett, for the appellants

C. Pendrith and J. Kuredjian, for the respondent

Keywords: Torts, Defamation, Anti-SLAPP, Civil Procedure, Costs, Courts of Justice Act, RSO 1990, c C 43, s 137.1, Schwartz et al. v Collette, 2021 ONSC 2138, Brad-Jay Investments Limited v Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Algra v Comrie Estate, 2023 ONCA 811, Veneruzzo v. Storey, 2018 ONCA 688

facts:

This appeal concerned a Anti-SLAPP motion by several defendants to dismiss an action commenced by Canadian Tire Corporation Limited (“Canadian Tire”). Canadian Tire claimed against the Milburn appellants for damages for, among other things, fraud, fraudulent misrepresentation, misappropriation and conversion, knowing receipt, and knowing assistance. It was alleged that the Milburn appellants engaged in a fraudulent scheme by falsely asserting an entitlement to and receiving payment for work under Canadian Tire’s customer return program when that work was not performed. Canadian Tire pleaded that the Milburn appellants made fraudulent transfers of funds that were misappropriated from Canadian Tire to the Robertson appellants.

The appellants submitted that on May 1, 2018, Mr. Milburn met with Canadian Tire and complained of privacy law violations by Canadian Tire and about Canadian Tire allegedly selling defective and dangerous tools that were not approved by the Canadian Standards Association. Canadian Tire denied these allegations. The appellants contended that after this meeting, Canadian Tire ordered the termination of Eaton Equipment Ltd.’s contract under the customer return program.

On the motion, it was the Milburn appellants’ position that Canadian Tire’s action was initiated to further an indirect, collateral, or improper purpose so that they were obstructed from going public or notifying relevant authorities of their knowledge of Canadian Tire’s sale of allegedly defective parts and privacy law violations. The Robertson appellants made similar submissions and argued that Canadian Tire’s action was a SLAPP proceeding against them by extension because they had been included in the lawsuit as leverage to be used against the Milburn appellants.

The motion was restricted to a determination of whether the moving parties had satisfied the threshold requirement of showing on a balance of probabilities that the action arose from an expression made by the moving parties that related to a matter of public interest. The motion judge ruled that the appellants had not discharged the threshold onus under s. 137.1 of the Courts of Justice Act and dismissed the Anti-SLAPP motion. He found that the claim as pleaded by Canadian Tire and the underlying facts are “not premised or grounded on any expressions made by the Milburn Defendants or any other defendant.”

issues:

1. Did the motion judge err in finding that the appellants had not met their onus of establishing that Canadian Tire’s action arose from an expression made by any of the appellants?
2. Did the motion judge err in finding that Canadian Tire’s motive in commencing its action was irrelevant on the determination of the threshold issue and that he was prohibited from considering the criteria used to determine whether an action should be dismissed under s. 137.1?
3. Did the motion judge err in awarding costs against the appellants?

holding:

Appeal dismissed.

reasoning:

1. No.

The motion judge was correct in finding that Canadian Tire’s fraud claim was neither grounded in nor targeting any expression made by the appellants. The Court agreed that there was nothing in the record that supported the assertion that a year after the appellants made their allegations against Canadian Tire, it decided to commence a fraud claim to silence them.

2. No.

The plaintiff’s motivation in commencing an action was not a relevant factor at the first stage of the SLAPP analysis, nor were the criteria that were used in determining whether an action should be dismissed. Instead, the inquiry was restricted under the CJA to the determination of whether the moving party had shown on a balance of probabilities that the action arose from an expression made by it that related to a matter of public interest.

SLAPP motions were intended to be a relatively summary procedure, designed to weed out unmeritorious actions that target expressions on matters of public interest. However, they have proven to be an unwieldly, expensive, and time-consuming remedy. The Court declined to contribute further to that problem by expanding the threshold test to include an investigation of a plaintiff’s motive in commencing litigation and consideration of factors that would apply had the motion passed the threshold stage.

3. Leave to appeal costs was denied.

The appellants required leave to appeal the motion judge’s costs award. Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”. This test was designed to impose a high threshold because appellate courts recognize that fixing costs is highly discretionary and that trial and motion judges are best positioned to understand the dynamics of a case and to render a costs decision that is just and reflective of what actually happened on the ground.

The motion judge exercised his discretion in accordance with recent authority from the Court on the issue of costs in the context of a SLAPP motion. There was no basis to interfere with that decision. Leave to appeal the costs award was denied.

Lyng v. Ontario Place Corporation, 2024 ONCA 23

[van Rensburg, Nordheimer and George JJ.A.]

Counsel:

M. Forget and E. Murtha, for the appellant

J.A. Scarfone and J. M. Sazio, for the respondent

Keywords: Torts, Negligence, Occupier’s Liability, Slip and Fall, Duty of Care, Standard of Care, Causation, “But For” Test, Damages, Occupier’s Liability Act, R.S.O. 1990, c. O.2, s. 3, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), Moore v. Sweet, 2017 ONCA 182, Housen v. Nikolaisen, 2002 SCC 33, Waldick v. Malcolm, [1991] 2 S.C.R. 456, Malcolm v. B.C. Transit (1988), 32 B.C.L.R. (2d) 317 (C.A.), Winters v. Haldimand (County), 2015 ONCA 98, Athey v. Leonati, [1996] 3 S.C.R. 458, Clements v. Clements, 2012 SCC 32, Ault v. Canada (Attorney General), 2011 ONCA 147, Lazare v. Harvey, 2008 ONCA 171, Woelk  v. Halvorson, [1980] 2 S.C.R. 430, S.M. c. Sternthal Katznelson Montigny, 2021 QCCA 673, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58

facts:

The appellant, Ontario Place Corporation (“Ontario Place”), appealed from the trial judge’s decision to award the respondent damages for injuries sustained while on its premises.

On July 14, 2016, the respondent, age 21 at the time, attended a concert at Ontario Place with his friend. It rained heavily that day. Following the concert the respondent, his friend, and other concertgoers exited the main gates and proceeded to a pedestrian bridge that leads over Lake Shore Blvd. to the Exhibition GO station. This bridge was the fastest and most direct route to that location. Upon arrival at the bridge, the respondent found that it was closed. Two security guards were blocking entry. Along with others, the respondent and his friend proceeded down a hill next to the bridge. There were no barricades or warnings limiting access to the hill. The respondent’s friend, who testified at trial, said that he went down the hill first, that the hill was wet and slippery, and that he “skidded down” without falling. The respondent, who followed his friend, fell and sustained a serious knee injury. A surgical repair was required. The respondent had consumed alcohol, was wearing flip-flops, and testified that he had slipped as he neared the bottom of the hill.

The trial judge found that Ontario Place was liable for the respondent’s injuries under s. 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Act”). In arriving at that conclusion, he made several findings of fact, including that 1) Ontario Place blocked entry to the bridge, 2) it had rained, the grass was wet, and the hill was therefore a hazard, 3) Ontario Place was aware that the hill was a hazard, 4) Ontario Place could have, but did not, warn people of the risk or place barriers to prevent entry to the hill, and 5) the respondent did not slip on the wet hill, but rather jumped and tore his ACL when his left leg landed on the asphalt road at the bottom of the hill. The trial judge found the respondent to be contributorily negligent and apportioned liability accordingly: 75 per cent to Ontario Place, and 25 per cent to the respondent. Ontario Place appealed.

issues:

1. Did the trial judge err by considering a theory of liability outside of the pleadings and presentation of the case?
2. Did the trial judge err in his causation analysis?
3. Did the trial judge err in finding that Ontario Place breached its duty under s. 3 of the Act on the basis that wet grass is not an unusual danger?
4. Did the trial judge err in failing to find that the respondent was the author of his own misfortune?
5. Did the trial judge err by awarding damages for loss of competitive advantage?

holding:

Appeal dismissed.

reasoning:

1. No.

The respondent’s theory of negligence was clear throughout, which was, in the circumstances (i.e., rain, low visibility, and pedestrian bridge closure), Ontario Place had an obligation to take steps to prevent patrons from traversing a wet, slippery slope. The trial judge rejected the respondent’s evidence that his fall and the resulting knee injury were caused by him slipping as he descended that wet hill. The theory of liability was not, as the appellant alleged, raised for the first time in the trial judge’s reasons for judgment. It was raised in the pleadings, addressed in both the written and oral arguments made by counsel at trial, and canvassed extensively during cross-examination of the respondent. The statement of claim also made the theory of the case clear. The theory was tested extensively by the appellant during the trial.  There was no procedural unfairness.

2. No.

Ontario Place did not identify any error that would warrant appellate intervention. The trial judge accurately set out and applied the applicable legal principles. The issue of causation is a factual finding which should not be interfered with absent palpable and overriding error. While attributing fault to the respondent and thus finding that he was contributorily negligent, the trial judge found that Ontario Place’s negligent acts set off a “train of events” that placed the respondent at the bottom of a wet, hazardous, slippery hill – a hazard known to Ontario Place and which “could have been easily prevented”. There was no error.

3. No.

Section 3 of the Act provides that: “An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” Ontario Place correctly pointed out that occupiers are not required to take unrealistic or impractical precautions against known risks, nor are they required to protect against every possible danger. The standard is not perfection.

The trial judge, however, cited the leading authority from the Supreme Court – Waldick – noting that “[a]s indicated in Waldick, the duty of reasonable care does not change [but] the factors, which are relevant to an assessment of what constitutes reasonable care, will necessarily be very specific to each fact situation”. The trial judge then proceeded to thoroughly address the factors present here and explained why, in the circumstances of the case, Ontario Place was liable. The trial judge did what s. 3 directed him to do – he carefully considered what would have been reasonable in the circumstances. The trial judge approached the question as required by s. 3 and by Waldick.

4. No.

The trial judge found that both Ontario Place and the respondent were negligent. There was nothing inconsistent about the two findings. “But for” causation requires only that a defendant’s negligent conduct be a necessary cause of the injury, not the sole cause. There were two negligent causes of the respondent’s injury with the trial judge apportioning liability accordingly. The standard for appellate interference with a trial judge’s apportionment of liability is an exacting one.  As Ontario Place did not identify any demonstrable error in the trial judge’s appreciation of the facts, or in his application of the relevant legal principles, the high threshold was not met.

5. No.

An award of damages for loss of competitive advantage is meant to compensate a plaintiff for a component of future income loss. A plaintiff is entitled to damages for loss of competitive advantage if they can prove a substantial risk of loss of income in the future. The standard for appellate interference with a damages award is onerous. Ontario Place needed to establish that the trial judge 1) made an error of principle or law; 2) misapprehended the evidence; 3) erred in finding there to be evidence on which to base his conclusion; 4) failed to consider relevant factors, or considered irrelevant factors; or 5) made a palpably incorrect or wholly erroneous assessment of damages.

The question was whether it was open to the trial judge to conclude, from that evidence, that there was a real and substantial risk of a future loss of competitive advantage. The question boiled down to what he could reasonably take from the evidence provided by the respondent’s treating orthopaedic surgeon. The trial judge’s apprehension of the evidence in its totality was reasonable and entitled to deference. The trial judge accurately set out the law, noting that the respondent needed only prove that there was a real chance of a future loss of competitive advantage, and he fairly applied the relevant principles to the facts as he found them.

Elbassiouni v. Brenn, 2024 ONCA 28

[Hourigan, Trotter and Copeland JJ.A]

Counsel:

S. Suleman, for the appellants

M. M. Fahmy, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Civil Procedure, Simplified Procedure, Summary Judgement, Evidence, Admissibility, Rules of Civil Procedure, rr. 39.02, 76.04

facts:

The appellants appeal from an order granting a motion for summary judgment arising from a dispute over the purchase and sale of a residential property. The appellants (who were the purchasers) alleged that the respondent/vendor breached warranties in the Agreement of Purchase and Sale (“APS”). After the transaction closed, the appellants alleged deficiencies in the amenities that were the subject-matter of the warranties, and also that the hot water heater and propane tank were rented as opposed to owned equipment. The motion judge concluded that there was no genuine issue for trial. The motion judge granted summary judgment in favour of the respondent.

issues:

1. Did the motion judge err in finding that this was an appropriate case for summary judgment?
2. Did the motion judge conduct the summary judgment motion unfairly?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that this was an appropriate case for summary judgment. The case involved a straightforward real estate transaction. In terms of liability, it involved an interpretation of warranties that were drafted in a manner very favourable to the respondent. The motion judge found there was nothing to contradict the respondent’s assertion of her genuine belief. The Court held that on the admissible evidence before the motion judge, it was open to the motion judge to reach these conclusions.

2. No.

Leading up to the summary judgment motion, one of the appellants and the respondent were examined by opposing counsel. The appellant’s examination was completed; however, the examination of the respondent was not, and a further date was scheduled. The respondent’s examination however was never resumed. Upon reviewing the transcripts of the examinations, the motion judge concluded that they were inadmissible under r. 76.04 under the Simplified Procedure, which prohibits cross-examinations on affidavits. The motion judge rejected the characterization of the examinations in this case as examinations for discovery. He found that they were cross-examinations of deponents on their affidavits under r. 39.02. The Court found no error in the motion judge’s characterizations of the examinations that were conducted by the parties. The Court further rejected the appellants’ submission that the motion judge acted improperly by reviewing the transcripts.

In considering whether the motion judge erred in considering the respondent’s reply affidavit, which was filed late (i.e., following the dispute that arose over the examinations of the parties, and after a scheduling deadline set by the motion judge), the Court held there was no error. When appellants’ counsel objected to its admission, the motion judge asked if the appellants were seeking an adjournment. The appellants did not seek an adjournment and indicated their readiness to proceed, even if the reply affidavit were to be admitted. The motion judge properly exercised his discretion to proceed in the circumstances. Therefore, there was no unfairness.

Duraisami v. Yaworski, 2024 ONCA 27

[Hourigan, Trotter and Copeland JJ.A.]

Counsel:

M.A. Jaeger, for the appellants

T.M. Zheng, for the respondent

Keywords: Breach of Contract, Civil Procedure, Simplified Procedure, Summary Judgment, Rules of Civil Procedure, r.76, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, Manthandi v. ASCO Manufacturing, 2020 ONCA 485, Hryniak v. Mauldin, 2014 SCC 7, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

facts:

Y and the respondent, D, entered into a joint venture agreement for the purpose of purchasing, redeveloping, and selling a property in Cambridge (the “JVA”). The JVA provided that the respondent would receive a return of her original investment of $ 100,000, plus an additional $ 20,000. Y signed a personal guarantee on July 23, 2019 (the “Guarantee”), guaranteeing the performance of the JVA.

The respondent signed the JVA on July 24, 2019 (Y had signed on July 22, 2019). On July 29, 2019, she advanced $ 100,000 to the corporate respondent (“932”), the owner of the property subject to the JVA. Y was an officer and director of 932.

The property subject to the JVA was sold on or about May 19, 2020, for $ 900,800. Y did not advise the respondent of the sale; rather, on July 9, 2020, he advised her by email that the sale had been delayed due to the pandemic. Y never sent the repayment. In October 2021, the respondent issued the claim for $ 120,000 in damages for breach of the Guarantee and the JVA.

The motion judge granted summary judgment, finding Y liable to pay the respondent $ 120,000 pursuant to the terms of the Guarantee. He further found that, interpreting the JVA, the parties intended by its terms that the respondent would be paid the agreed $ 120,000 from the proceeds of the sale of the subject lands without deduction for any losses the project might sustain. With respect to 932, the motion judge found that it had been unjustly enriched, the respondent had been deprived, and there was no juristic reason for the enrichment. On this basis the motion judge found the appellants jointly and severally liable to the respondent for $ 120,000 plus prejudgment interest.

issue:

Did the motion judge err in finding that the claims of the respondent were appropriate for summary judgment?

holding:

Appeal dismissed.

reasoning:

1. No.

The motion judge was alive to the issue of whether it was appropriate to decide this action by summary judgment, given that it was a rule 76 proceeding. His reasons were clear that he considered the appropriate legal analysis, referring to the Court’s decisions in Combined Air and Manthadi. There was no palpable and overriding error in his finding that the action was document-driven and that the relevant facts were undisputed. This summary judgment motion did not turn on findings of credibility. There was no prejudice to the appellants from the matter being determined by summary judgment.

Further, there was no palpable and overriding error in the motion judge’s interpretation of the Guarantee and the JVA, and in particular, no error in his finding that the Guarantee was valid and subsisting and that it did what it was clearly intended to do – impose personal liability on Y.

SHORT CIVIL DECISIONS

Jakubov v. Sun Life Assurance Company of Canada, 2024 ONCA 16

[Hourigan, Trotter and Copeland JJ.A.]

Counsel:

G. Roberts, for the appellant

B. Wong and N. Hollard, for the respondent

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, S.O. 2002, c. 24, Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.