Canada: Court Of Appeal Summaries (September 29 To October 3)

Last Updated: October 14 2014
Article by John Polyzogopoulos

Hi Everyone. Here Are This Week's OCA Summaries.

Have a nice weekend.

Graydon v. Burton, 2014 ONCA 674 

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


No one appearing for the defendant (appellant)

Tudor B. Carsten, for the plaintiff (respondent)

Keywords:  Denial of Adjournment, Absence of Evidence to Support Adjournment Request, Failure to Attend Court


This appeal arises from a decision of the Superior Court granting the respondent's motion to strike the appellant's counterclaim for sexual battery, as well as several factual allegations in the counterclaim. The appeal was adjourned several times at the appellant's request for health reasons.  The appellant requested another adjournment on the September 25 date and did not appear in court that day. The respondent wished that the appeal proceed in the appellant's absence.


(1) Should the appeal be dismissed in the appellant's absence?

Holding:  The appellant's request for an adjournment and her appeal are dismissed. Appellant was ordered to pay $10,000 in costs to the respondent.


(1) Yes. The appellant has not provided any evidence, beyond her emotional problems, to support her request for an adjournment of the hearing scheduled for September 25. The appellant has been provided sufficient time to present evidence in support of an adjournment but has failed to do so. Further, a review of the record and the allegations in the appellant's counterclaim for the tort of sexual battery demonstrate that the appeal has little chance of success.

Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671

[Juriansz, LaForme and Lauwers JJ.A.]


W.E. Pepall and J.T. Akbarali, for the appellants

M. Manning, Q.C., for the respondents

Keywords:  Dismissal for Delay, Rule 24, Rules of Civil Procedure, Inherent Jurisdiction


The appellants started an action in 2003, alleging that the million dollar yacht they had purchased from the respondents was defective. The appellants sought rescission of the purchase contract or alternatively, damages. The pleadings closed in 2004. Discoveries began in December 2005, but were adjourned to allow the appellants to amend their statement of claim. No other steps were taken until August 2011.

On a motion by the respondents, the motion judge dismissed the action for want of prosecution based on both his discretion under Rule 24 of the Rules of Civil Procedure, and as an exercise of the court's inherent jurisdiction. The motion judge had found that delay, in excess of ten years and including an eight year delay following the expiry of the limitation period, was inordinate and inexcusable.

Issue: Whether the motion judge's finding that the delay was inordinate and inexcusable was correct.

Holding:  Appeal dismissed.


The motion judge's finding that the delay was inordinate and inexcusable was unassailable. Given the motion judge's finding as to the potential significance of testimony dependent upon the witnesses' ability to recall statements and observations, his conclusion that the appellants had not successfully rebutted the presumption of prejudice resulting from the inordinate delay was not unreasonable. Although both parties were to blame for the delay, the appellants failed to fulfill their responsibility in moving the action along. Furthermore, the motion judge properly invoked and exercised his inherent jurisdiction to dismiss the action for delay. Notwithstanding Rule 24, the court retains the inherent power to prevent an abuse of its own process. There was no reason for such inordinate delay in this case.

Astley v. Verdun, 2014 ONCA 668

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


M.L. Biggar, for the appellant

Brian N. Radnoff, for the respondent

Keywords: Contempt, Determination of a Fit Sentence


This was an appeal from the judgments of Justice Robert F. Goldstein of the Superior Court of Justice, dated May 23, 2013 and October 29, 2013.


Whether there was any error in the decisions of the motion judge on the finding of contempt or the determination of a fit sentence.

Decision: Appeal dismissed.


The reasons of motion judge in respect of both aspects of the contempt proceeding were clear and correct. He considered, and properly rejected, the arguments the appellant made before the Court.

Solloway v. Klondex Mines Ltd., 2014 ONCA 672

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


Colin Pendrith, for the appellant

Young Park and David Levangie, for the respondent

Keywords: Conflict of laws, Jurisdiction simpliciter, Forum non conveniens, Village Resorts Ltd. v. Van Breda

Facts: The appellant sought a determination of his rights under various agreements entered into between the parties. The respondent brought a motion to stay this proceeding because of actions that had been brought in other jurisdictions. The motions judge held that Ontario had jurisdiction simpliciter over the proceeding; but the disputes in the other actions were relevant to the determination of whether Ontario was the forum non conveniens. Due to the potential impact of the other actions, the motion judge ordered that: (1) the action be temporarily stayed for a period of 60 days; (2) the temporary stay be lifted if the respondent and its subsidiary did not commence an action against the appellant in British Columbia or Nevada within 60 days; and (3) the temporary stay be permanent if the respondent and its subsidiary commenced an action against the appellant in British Columbia or Nevada within the 60 days.

Issue:  Was the motion judge's disposition of the issue of jurisdiction reasonable and fair?

Decision:   Appeal dismissed.

Reasoning: Yes. The motion judge's disposition of the matter was entitled to deference.  The Court considered relevant factors from Village Resorts Ltd. v. Van Breda and concluded that the motion judge was correct in inferring that the other proceedings would involve the appellant and were connected to the application at issue.

Coutu Gold Mines Company Limited v Ontario, 2014 ONCA 684

[Doherty, Pepall and Tulloch JJ.A]


Peter W. Coutu, in person

Tom Schreiter, for the respondent

Keywords: Dismissal of Action, Mining Rights, Res Judicata, Abuse of Process, Coutu Gold Mines Limited Act


The appellant sought the return of mining claims and rights forfeited to the Crown in 1974. His 2013 action was seeking the same relief for the same set of underlying facts as found in his 2008 and 2010 actions. The motions judge dismissed the action on the grounds of res judicata, abuse of process, time limitations, and on the language of the Coutu Gold Mines Limited Act.


(1) Did the motions judge err in dismissing the action?

 Holding:  Appeal dismissed.


(1) No, there was no error in the motion judge's decision to dismiss the action. There had been no appeal ever taken from the two previous court orders dismissing the appellant's actions claiming the same relief and raising the same issues as claimed in this new action. Res judicata and abuse of process were properly relied on. The enactment of the Coutu Gold Mines Limited Act had no impact on the outcome because it did not affect rights that had been forfeited after the date of dissolution of the company.

Inter-Leasing, Inc. v. Ontario (Revenue), 2014 ONCA 683 

[Weiler, Hourigan and Pardu JJ.A.]


A. Meghji, M. Biringer, C. D'Elia and A. Hirsh, for the appellant

A.C. Veiga and R. Mak, for the respondent

Keywords: Costs, Reasonable Costs Award, Partial Indemnity, Rule 57 of the Rules of Civil Procedure

Facts: This case is a costs endorsement whereby the appellant was successful at trial and appeal and sought almost $1.3 million in costs. The respondent argued that this amount was excessive.


(1) What is a reasonable cost award that should be awarded to the appellant?

Holding:  Costs of the trial and appeal were awarded to the appellant in the total amount of $925,000.


(1) The costs sought by the appellant exceed a fair and reasonable amount that the parties would expect to pay or be awarded. Costs in the amount of 55-60% of a reasonable hourly rate for the appellant's legal fees are appropriate.

Limen Group Ltd. v. Blair, 2014 ONCA 680

[Doherty, Pepall and Tulloch JJ.A.]


Daniel J. Shields and Hendrik T. Nieuwland, for the appellants

Lorne A. Richmond and Charles Sinclair for the respondents Kerry Wilson, the Brick and Allied Craft Union of Canada and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers

David Bannon and Robert Frank for the respondents John Blair, Masonry Industry Employers' Council of Ontario and the Ontario Masonry Contractor Association – BACU Bargaining Committee

Keywords: Collective Bargaining, Collective Agreement, Memorandum of Agreement, Jurisdiction, Ontario Labour Relations Board (OLRB)

Facts: In June 2014, the appellants, unionized masonry contractors in the industrial, commercial and institutional ("ICI") sector of Ontario's construction industry, commenced an action against the  respondents. They claim, among other things, that a Memorandum of Agreement and two collective agreements between them are unlawful and void.

The motion judge stayed the appellant's action on the basis that the essential character of the parties' dispute was one of labour relations over which the Ontario Labour Relations Board ("OLRB") has exclusive jurisdiction. He ordered that the action be stayed. He also concluded that notwithstanding that the court retained its inherent jurisdiction to grant injunctive and interim relief, he declined to exercise his discretion in that regard.

Issue(s): Did the motion judge err in staying the appellant's action for absence of jurisdiction?

Held: No. Appeal dismissed.

Reasoning: The court found that the essential character of the parties' dispute clearly falls within the OLRB's exclusive jurisdiction – the anchor of the appellants' action is the  illegality of the Memorandum of Agreement and the two collective agreements.

The appellants' complaint that the Labour Relations Act ("LRA") contemplates one seamless provincial collective agreement, and that one of the respondents owes no duties or obligations to the appellants since they are not formally a designated bargaining agency under the LRA, does not alter the essential character of the dispute.

Moreover, the court concluded that the appellants have avenues available within the labour relations regime to challenge the validity of the Memorandum of Agreement and the collective agreements, and there is no deprivation of the ultimate remedy sought by the appellants.

While noting that the motion judge was correct to find that the court had jurisdiction to award injunctive relief, the court, without further reasons, also agreed in its decision to refuse to grant it.

Murray v. Ceruti ,2014 ONCA 679

[Simmons, Rouleau and Hourigan JJ.A.]


G. S. Joseph and R.M. Kniznik, for the appellant

C. Mancia, for the respondent

Keywords:  Conflict of Laws, Custody and Access, Jurisdiction, Forum Non Conveniens


The respondent, a Canadian citizen, moved to Indiana to live with the appellant. Within two months, they got married and the respondent became pregnant. They separated after one month of marriage and the respondent moved back to Ontario.

Both parties commenced proceedings in Indiana dealing with dissolution of their marriage: the appellant filed a petition for divorce and the respondent filed a petition for annulment, which was abandoned. The respondent participated in the Indiana divorce action in which the judge ruled that Indiana had jurisdiction over the parties' unborn child.

The respondent gave birth one week after the ruling on Indiana's jurisdiction. The following week, the respondent brought an ex parte motion in the Ontario Superior Court for temporary custody, which was granted. The respondent then filed an application in the Ontario Superior Court for full custody.

The appellant brought a motion for a stay of proceedings based on the grounds that Ontario did not have jurisdiction, or alternatively, that Indiana was forum conveniens. The motion judge determined that Ontario had jurisdiction over custody and access of the child pursuant to paragraph 22(1)(b) of the Children's Law Reform Act ("CLRA"), and refused to decline the exercise of jurisdiction. He held that, although the respondent attorned to Indiana's jurisdiction for the purpose of the equalization claim and corollary relief, she did not attorn in relation to the issues of custody and access.

Further, the motion judge determined that subsection 41(1) of the CLRA did not require an Ontario court to recognize the Indiana order. He found the Indiana Court did not have jurisdiction under section 22 of the CLRA to make the order had the situation been the reverse and Ontario had been the father's home jurisdiction, as the child was unborn and had never been present in Indiana.


(1) Did the motion judge err in holding that Ontario had jurisdiction over the custody and access issues?

(2) Did the motion judge err in failing to decline jurisdiction?

Holding: Appeal dismissed.


(1) No. The criteria in paragraph 22(1)(b) of the CLRA, which governs the assumption of jurisdiction where the child is not habitually resident in Ontario, were met in this case. Although the respondent did not provide authority for the proposition that one can attorn to only part of a proceeding, attornment is at most a factor to consider under paragraph 22(1)(b) and section 25 of the CLRA, and is by no means dispositive of the issue of jurisdiction.

(2) No. The motion judge found there was substantial evidence located in Ontario concerning the best interests of the child. The motion judge was further mindful of the policy objectives of the custody, access and guardianship sections of the CLRA. This was not a case of forum shopping, as both the respondent and the child have more ties to Ontario. Although the existence of parallel proceedings are unfortunate, it is not incumbent on a Canadian court to decline to exercise jurisdiction that is properly assumed just because there is another proceeding pending in another jurisdiction.

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.

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John Polyzogopoulos
Events from this Firm
6 Feb 2019, Other, Toronto, Canada

When it comes to class actions, costs regimes vary across Canada. Ontario follows the traditional two-way costs regime while other jurisdictions like British Columbia have adopted a no cost regime.

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