Canada: Top 5 Civil Appeals from the Court of Appeal - Revised Edition (December 2012)

Last Updated: January 3 2013
Article by Jasmine T. Akbarali
  1. Martin v. Fleming, 2012 ONCA 750 (Sharpe, Rouleau and Hoy JJ.A.), November 6, 2012
  2. Locking v. Armtec Infrastructure Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012
  3. AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012
  4. Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), November 23, 2012
  5. Treat America Limited v. Leonidas, 2012 ONCA 748 (Goudge, Feldman and Blair JJ.A.), November 27, 2012

1. Martin v. Fleming, 2012 ONCA 750 (Sharpe, Rouleau and Hoy JJ.A.), November 6, 2012

In this brief endorsement, the Court of Appeal settled the long standing debate as to whether a plaintiff who is injured in successive automobile accidents is subject to an individual deductible for each accident.

The appeal turned on the interpretation of s. 267.5(7) of the Insurance Act, which specifies certain amounts to be deducted from non-pecuniary damages awards for bodily injury or death arising directly or indirectly from the use or operation of an automobile. On a Rule 21 motion, Justice Herman of the Superior Court held that where a plaintiff has been involved in two accidents and the actions are tried together to facilitate the assessment of damages, the plaintiff is subject to one deductible for each claim.

The Court dismissed the appeal, agreeing with the motion judge that the application of individual deductibles to each accident is consistent with the wording of the provision. The Court of Appeal held that the wording of s. 267.5(7) is unambiguous: an individual deductible must be applied to the portion of the damages arising from each accident.

The Court also upheld the motion judge's finding that the court is to determine the amount of general damages in an action by first determining the general damages in that action and then reducing that amount in accordance with the statutory deductible.

2. Locking v. Armtec Infrastructure Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012

This decision addresses the appropriate appeal route for appeal of a carriage order made under the Class Proceedings Act, 1992.

Locking, represented by Siskinds LLP, commenced proceedings against Armtec Infrastructure Inc. under the Class Proceedings Act, 1992. So, however, did three other plaintiffs represented by Sutts, Strosberg LLP. On January 20, 2012, Justice Thomas of the Superior Court granted carriage of the class action to the plaintiffs represented by Sutts, Strosberg LLP, ordering that Locking's action be stayed. Locking appealed to the Court of Appeal.

The Court declined to hear Locking's appeal, holding that it did not have jurisdiction and that the appeal lay to the Divisional Court with leave.

The Court explained in its brief reasons that the majority of appeals under the Class Proceedings Act, 1992 are to the Divisional Court. Rights of appeal to the Court of Appeal, as set out in s. 30(3) of the Act, exist only in rare cases, such as appeals from a judgment on common issues or a final order that deals with an assessment of monetary relief.

Where the Class Proceedings Act, 1992 is silent, the Courts of Justice Act governs the appeal route and, pursuant to s. 6(1)(b) of that Act, an appeal lies to the Court of Appeal only from a final order of a judge of the Superior Court, except an order referred to in section 19(1)(a) or an order from which an appeal lies to the Divisional Court under other legislation.

Carriage orders are not specifically addressed in the Class Proceedings Act, 1992; therefore, the Courts of Justice Act applies and the appropriate appeal route then becomes a matter of determining whether the order below was final or interlocutory.

Citing the decision in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), in which Justice Middleton stated that an interlocutory order is one "which does not determine the real matter in dispute...but only some matter collateral," the Court concluded that the order of the motion judge was interlocutory.

Although this was the first time that the Ontario Court of Appeal had occasion to address this issue, the Court noted that courts in other jurisdictions in Canada had considered the matter, and had come to the conclusion that an order granting carriage of a proposed class action was interlocutory in nature. The Courts of Appeal for British Columbia and Newfoundland and Labrador held in W.(A.) (Litigation Guardian of) v. British Columbia, 2003 BCCA 448, 17 B.C.L.R. (4th) 263 and H.P. Management Inc. v. Newfoundland and Labrador (Minister of Finance), 2007 NLCA 65, 270 Nfld. & P.E.I.R. 277, respectively, that a stay of action of the unsuccessful party on a carriage motion does not bring about an end to the proceedings because the action is stayed only as a class action and may continue to be prosecuted as an individual action.

Having determined that the motion judge's order was interlocutory, the Court held that Locking's appeal should be heard by the Divisional Court with leave.

3. AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012

This appeal concerns the interpretation of a lease, and specifically whether a lease gave the tenant the right to stay in occupation upon its expiration.

The tenant, AIM Health Group ("AIM"), operated a chronic pain management clinic from premises leased from the landlord. The landlord and tenant entered into a five-year commercial lease set to set to expire on December 31, 2011, with an option to renew for an additional five years. In the spring of 2011, the tenant informed the property manager that it did not intend to renew the lease, but would likely need to remain in the premises for a few weeks or months after the expiry of the term due to a government-mandated inspection by the College of Physicians and Surgeons of Ontario.

The following months brought a series of delays with respect to the inspection, and the tenant continued to communicate that it would need to remain in the premises after the expiry of the lease. Meanwhile, the landlord procured a new tenant and entered into a lease with it beginning January 1, 2012. When the lease with AIM expired on December 31, 2011, AIM continued to occupy the premises. The following day, the landlord changed the locks and subsequently removed AIM's property.

AIM brought an emergency application seeking a declaration that it was entitled to re-enter the premises. It claimed to be an overholding tenant pursuant to s. 3.05 of the lease and submitted that the lease had become a month-to-month tenancy which the landlord had not given notice to terminate. The landlord argued that pursuant to s. 7.08 of the lease, the tenant was required to surrender the premises on December 31, 2011, when the term expired.

The application judge found in favour of the tenant, holding that the tenant was validly overholding pursuant to s. 3.05 of the lease and was entitled to re-enter the premises. By the time the landlord's appeal came before the Court, the dispute had been resolved, but the Court of Appeal exercised its discretion to hear the appeal due to the significant issues raised.

The appeal turned on the language of the overholding clause at s. 3.05 of the lease. The tenant pointed to the fact that the clause did not stipulate that a month to month tenancy is created only on the payment and acceptance of rent or on the consent of the landlord. AIM claimed that because those words were absent, the effect of the clause was to give it the unilateral option not to vacate the premises at the end of the term, as required by the surrender clause at s. 7.08 of the lease, but to remain in possession, creating a new month to month tenancy without the landlord having accepted rent or otherwise given consent.

Writing for the Court, Feldman J.A. rejected this argument, explaining that an overholding clause that does not refer to the consent of the landlord has nonetheless been interpreted to mean that it is only with the consent of the landlord that a month to month tenancy is created when the tenant overholds by remaining in possession following the termination of a lease. Citing Re Imperial Oil Ltd. & Robertson, [1959] O.R. 655 (C.A.) and Rafael v. Crystal, [1966] 2 O.R. 733 (H.C.J.), Feldman J.A. held that for an overholding tenancy to arise, the landlord must agree that the tenant may stay in the premises, which is generally evidenced by the payment and acceptance of rent.

Feldman J.A. found that the jurisprudence on overholding tenancy reflects commercial sense. Interpreting the overholding clause as giving the tenant the unilateral option to remain in the premises provides no benefit to the landlord and "would make the clause commercially unreasonable." Feldman J.A. further noted that only this interpretation of the overholding clause gives effect to the surrender clause at s. 7.08 of the lease. When the landlord has consented to the overholding by accepting rent, the landlord has waived the tenant's obligation to vacate. Without that waiver, however, the tenant must comply with the surrender clause.

Feldman J.A. concluded that in interpreting the overholding clause in accordance with judicial authority and commercial reasonableness, AIM was not entitled to remain in the premises without evidence that the landlord consented. AIM was therefore in breach of its obligation to vacate the premises at the end of the term of the lease and became a trespasser.

Gillese J.A. dissented on the interpretation of the overholding clause, finding that the tenant lawfully occupied the premises on January 1, 2012 on the basis of a month to month tenancy. According to Gillese J.A., the mere fact that the tenant continued to occupy the leased premises upon the expiry of the initial term without further agreement meant that s. 3.05 applied. Gillese J.A. held that if the landlord's consent was intended to be a precondition to the tenant's remaining in the premises, that should have been included in the clause.

4. Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), November 23, 2012

The Companies' Creditors Arrangement Act (the "CCAA") provides that general creditors are to be paid in full before equity claims are paid. This appeal turns on the definition of "equity claim" in s. 2(1) of that statute.

The Court of Appeal considered whether claims by the appellant auditors and underwriters against the respondent debtor Sino-Forest Corporation fall within that definition. The appellants' claims for contribution and indemnity arose out of proposed shareholder class actions against Sino-Forest and the appellants for misrepresentation.

Earlier this year, Sino-Forest, unable to satisfy all of the claims against it, sought protection under the CCAA. After the appellants filed individual proofs of claim against Sino-Forest, it applied for an order stipulating that the appellants' claims are equity claims under the CCAA. On July 27, 2012, Justice Morawetz, the supervising judge of the CCAA proceedings, granted the order, holding that it was not premature to determine the equity claims issue at that time and that the impugned claims should be characterized as equity claims.

Section 2(1) of the CCAA defines an "equity claim" as a "claim that is in respect of an equity interest, including a claim for, among others,

(a) a dividend or similar payment,

(b a return of capital,

(c) a redemption or retraction obligation,

(d) a monetary loss resulting from the ownership, purchase or sale of an equity interest or from the rescission [...] of a purchase or sale of an equity interest, or

(e) contribution or indemnity in respect of a claim referred to in any of paragraphs (a) to (d)"

The Court of Appeal engaged in a thorough analysis of the provision, concluding that the appellants' claims for contribution and indemnity are indeed equity claims.

The Court first considered the expansive language of the provision, notably Parliament's use of the phrase "in respect of" twice in the definition. As the Supreme Court held in CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, the words "in respect of" are of the widest scope possible, "conveying some link or connection between two related subjects".

Because the shareholders' claims against Sino-Forest fall within the meaning of paragraph (d) of the definition of "equity claim" and the appellants' claims against the respondent are directly linked to the shareholder claims, the appellants' claims for contribution and indemnity are therefore connected to or "in respect of" a claim referred to in paragraph (d).

The Court went on to explain that the phrase "including a claim for, among others", indicates that the words preceding it – "a claim that is in respect of an equity interest" – should be given an expansive interpretation pursuant to the Supreme Court's decision in National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029, encompassing "matters which might not otherwise be within the meaning of the term." The Court also noted the significance of the language absent from the impugned provision, pointing out that "equity claim" is deliberately not limited to a claim advanced by the holder of an equity interest.

The Court further posited that paragraph (e) of the provision was drafted in regard to claims for contribution or indemnity by non-shareholders because if only a person with an equity interest could assert such a claim, that paragraph would be rendered meaningless. The court cited the decision in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, in which Lamer C.J. held that "[i]t is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage."

In the view of the Court, this interpretation is consistent with the remainder of the section, which addresses remedies available to shareholders. If ss. 2(1)(a) to (d) refer to shareholders, then it follows that paragraph (e) refers to claims for contribution or indemnity not by shareholders.

On the issue of the timing of the supervising judge's characterization of the appellants' claims, the Court declined to find that the supervising judge determined the equity claims issue prematurely. The Court noted that Sino-Forest had wanted the proceedings completed as soon as possible and that it was made clear from the outset that the appellants' claims had to be characterized. The Court further held that the appellants failed to identify any prejudice that arose from the supervising judge's determination of the issue.

The Court therefore concluded that there was no basis on which to interfere with the supervising judge's determination of the claims issue and that the appellants' claims for contribution or indemnity are equity claims within the meaning of s. 2(1)(3) of the CCAA.

5. Treat America Limited v. Leonidas, 2012 ONCA 748 (Goudge, Feldman and Blair JJ.A.), November 27, 2012

The appellant, Robert Leonidas, former President and CEO of Nestlé Canada, is the subject of a criminal investigation by the Competition Bureau in respect of an alleged conspiracy to unreasonably enhance the price of chocolate in Canada. Meanwhile, as result of information made public in the course of that investigation, a number of class actions were commenced in the United States against chocolate manufacturers there and in Canada for damages suffered as a result of the alleged conspiracy. These class actions were combined into Multidistrict Litigation (MDL) in Re: Chocolate Confectionary Antitrust Litigation.

Although neither the appellant nor Nestlé Canada are parties to the MDL, the plaintiffs, represented by the respondent Treat America Limited, sought to examine Leonidas on the merits of its claim. The case management judge overseeing the MDL issued a Letter of Request for International Judicial Assistance (LOR) seeking an order from the Ontario Superior Court compelling Leonidas to appear as a witness in the MDL. On December 9, 2011, Justice Campbell of the Superior Court granted an order enforcing the LOR, adding a number of conditions designed to protect the appellant.

Leonidas appealed to the Court of Appeal, submitting, as he had before the application judge, that the order was contrary to Canadian public policy in respect of his right against self-incrimination and was unduly burdensome.

The appellant, who refused to be examined voluntarily in the MDL, was primarily concerned with the possible prejudice to him if the Commissioner of Competition were to obtain access to his deposition while he is under investigation by the Competition Bureau. The Commissioner, which was granted intervener status in the MDL, could obtain access to the appellant's deposition either directly, or through one of the parties to the MDL which is co-operating with, and has been granted immunity by, the Commissioner.

Writing for the Court, Feldman J.A. outlined the six-part test for enforcement of an LOR, as set out in Re Friction Division Products, Inc. and E. I. Du Pont de Nemours & Co. Inc. (No.2) (1986), 56 O.R. (2d) 722 (H.C.). The appellant's claims relied on the fourth and sixth parts of the Friction test, which hold, respectively, that the order sought by the LOR must not be contrary to public policy and must not be unduly burdensome, "having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here".

Feldman J.A. rejected the appellant's submission that the Commissioner's role in events leading up to the MDL rendered the Commissioner responsible for the appellant "losing his right to remain silent". Citing the importance of the open court principle, Feldman J.A. explained that the Commissioner acted in accordance with normal practice in not seeking to seal materials discovered in the course of its investigation.

Turning to the issue of the appellant's Charter right to remain silent in the face of an investigation and the potential for the LOR to circumvent that right if his testimony were to become available to the Commissioner, Feldman J.A. noted that pursuant to the Supreme Court's decisions in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 and the recent case of R. v. Nedelcu, 2012 SCC 59, the use immunity protection provided by s. 13 of the Charter is reserved for previously compelled incriminating evidence. Because the appellant is being compelled to testify under the LOR, he is protected by s. 13 of the Charter such that his testimony, to the extent that it may be self-incriminating, cannot be used in subsequent proceedings against him.

Feldman J.A. further explained that the s. 7 Charter right not to be compelled to provide information to an investigating authority does not grant an accused person immunity from compulsion in a civil action. As the Supreme Court held in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, there must be a balance "between the principle against self-incrimination and the principle that all relevant evidence should be available to the trier of fact in a search for the truth."

Feldman J.A. held that the protective conditions imposed by Justice Campbell sufficiently addressed the potential prejudice to the appellant and were properly based on public policy considerations. Moreover, she noted that the Commissioner had also addressed the appellant's concerns, assuring the court that counsel for Hershey Canada (the only Canadian party remaining in the MDL) would not be permitted to share the contents of the appellant's examination with its client or the Commissioner and that the Commissioner has no intention to seek the appellant's deposition transcript.

Noting that the Commissioner had advised the Court that it was prepared to consent to further conditions designed to protect the appellant, Feldman, J.A. added three additional provisions to the order enforcing the LOR. Pursuant to these conditions, the Commissioner agreed not to seek or receive information regarding the contents of the appellant's examination or to seek a court order for access to his testimony. Feldman J.A. held that the addition of these conditions ensured that the Commissioner will not have access to the appellant's examination unless and until his deposition is sought to be used in public in the MDL or until any trial of the appellant in Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jasmine T. Akbarali
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.