Canada: Court Of Appeal Summaries (February 23 - 27, 2015)

Last Updated: March 5 2015
Article by John Polyzogopoulos

Hello everyone. Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). Topics include family law support obligations, statutory interpretation of municipal tax laws, the collection of realty taxes from a tenant, and a discussion of prejudice in dismissal for delay motions.

St. Joseph (Township) v. Rowe, 2015 ONCA 128

[Weiler, Epstein and Brown JJ.A.]


Jamie Spotswood, for the appellant

Hugh MacDonald, for the respondent

Keywords: Real Estate, Landlord and Tenant, Sublease, Liability for Tax Arrears


Rowe and the Township entered into an Offer to Lease dated April 8, 2004, for restaurant space at the Richards Landing Municipal Marina. The Marina lands were owned by the federal Crown and leased by the Township. At the time of the Offer to Lease the Marina had not been assessed for municipal realty tax purposes. Section 9 of the Offer to Lease stated: "Tenant shall be responsible to pay any and all realty taxes and assessments applicable to the leased premises".

By letter dated June 4, 2004, Rowe's lawyer, Mr. Dumanski, wrote to him advising: "You should determine in advance what those realty taxes are so you can determine whether you can afford to lease the premises". Rowe did not do so. Section 6 of the formal sublease stated: "The Subtenant shall be responsible to pay all realty taxes and assessments applicable to the subject property".

The Municipal Property Assessment Corporation ("MPAC") did not provide the Township with a property assessment notice for the leased premises until November, 2007. The following month the Township sent Rowe tax notices for the leased premises for the years 2005, 2006 and 2007 in the principal amount of $11,345.68. Rowe did not pay the Township any amount for realty taxes before vacating the leased premises in September, 2008.

The court below found Rowe liable the reality taxes. Rowe appealed.


(1) Did the terms of the sublease permit the retroactive collection of realty taxes?

(2) Did the Township lack the authority to sue for realty tax arrears?

(3) Was the Township's claim for realty tax arrears estopped by the doctrine of laches?

Decision: Appeal dismissed.


(1) Yes. The trial judge correctly held that the defendant could not escape his contractual obligation set out in both the offer to lease and the sublease and was responsible for taxes owing on the rental property during the duration of his tenancy.

(2) No. Rowe argued that the Township could not collect realty taxes from him by suing for tax arrears under the Sublease, but was limited to the realty tax recovery mechanisms available to a municipality under sections 349 to 351 of the Municipal Act, 2001, S.O. 2001, c. 25. Rowe did not plead this position in his Statement of Defence and Counterclaim, he did not raise it before the trial judge, and he did not provide this court with authority to support his position. In such circumstances, the court could not give any effect to his argument, especially in light of the clear language of s. 6 of the Sublease under which Rowe contracted with the Township, in its capacity as sub-landlord, to pay realty taxes.

(3) No. The doctrine of laches permits a court to deny relief to a claimant who has unreasonably delayed or who has been negligent in the assertion of its rights and, in consequence, the party opposite has acted to his detriment: Matharu v. Mid-West Sportswear Ltd., 2002 SKQB 522, at para. 7. The court saw no merit in this argument for two reasons. First, the trial judge made clear that responsibility for the delay in assessing the value of the leased premises lay with MPAC, not the Township. The Township issued tax notices to Rowe as soon as it was in a position to do so, within a month of receiving the MPAC property assessment notice. Second, the record did not support Rowe's contention that he had acted to his detriment as a result of any conduct by the Township in respect of the treatment of realty taxes under the Sublease.

Tags: Real Estate, Landlord and Tenant, Sublease, Liability for Tax Arrears

Mason v Shatford, 2015 ONCA 133

[Laskin, Rouleau and Huscroft JJ.A.]


W.A. Chalmers, for the appellant

I.Y. Lavrence, for the respondent


Court Order, Issue Estoppel, Abuse of Process


Appeal dismissed.


The Court of Appeal agreed with the motion judge that the appellant was attempting to relitigate issues already determined by a prior order. As noted by the motion judge, the respondent was entitled to rely on the prior order just as the appellant was entitled to seek to vary or challenge it. Leave to amend was also denied as no amendment could remedy this fundamental flaw in the  claim.

Costs to the respondent fixed at $10,000, inclusive of disbursements and applicable taxes.

Tags: Court Order, Issue Estoppel, Abuse of Process

Young Men's Christian Association of Greater Toronto v. Municipal Property Assessment Corporation, 2015 ONCA 130

[Rouleau, van Rensburg and Pardu JJ.A.]


Walker, Q.C., and C. Toomath-West, for the appellant

G. Mitchell, for the respondent

Keywords: Municipal Tax, Statutory Interpretation, The Toronto Young Men's Christian Association Act, 1923, Assessment Act

Facts:  The appellant, The Young Men's Christian Association of Greater Toronto, appealed an order dismissing its application for an exemption from property taxation for premises it occupies in four buildings located in the City of Toronto. The appellant's claim for an exemption from property taxation was based on s. 10 of The Toronto Young Men's Christian Association Act, 1923, S.O. 1923, c. 106 (the "YMCA Act"). The appellant argued that the application judge erred in restricting his analysis of the exemption in s. 10 of the YMCA Act to the meaning of the word "of", in reference to the "buildings and lands ... of the said association", and in not taking a broad and liberal approach in interpreting the exemption, in light of the overall purposes of the YMCA Act.

Issue: Whether the leased premises occupied and by the appellant were buildings or land "of the said association", and were therefore exempt from municipal property taxation by virtue of s. 10.

Holding:  Appeal dismissed. The decision of the application judge was upheld, but for different reasons.

Reasoning:  No.  As per Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, it is essential to consider the broad context of the municipal property tax scheme, of which s. 10 of the YMCA Act forms a part. The appellant was claiming an exemption from property taxes for the premises it leased. A person with a leasehold interest in land is not an "owner" within the meaning of the Assessment Act. Therefore, the appellant's leased premises were not "land", because a tenancy does not qualify as "land"; it is simply an interest in land. Accordingly, "lands ... of the [appellant]" would not ordinarily include lands that the appellant leases.

The appellant argued that "land" as used in the YMCA Act had a different, and expanded meaning, to include leasehold interests by referring to s. 5 of the YMCA Act. The first clause of s. 5 recognizes the association's power to acquire and dispose of "real property or any estate or interest therein ... by purchase, lease, gift, devise or bequest", while the second clause of s. 5 provides a limit for how long the "land at any time acquired" must be held after it ceases to be required for the association's purposes. The appellant contended that "land at any time acquired" in the context of s. 5 must include real property or any estate or interest, and that this expanded meaning should be carried into the interpretation of s. 10. The Court rejected this argument. Section 5 deals with the appellant's power to acquire and dispose of real estate. The first clause of s. 5 clearly distinguishes between ownership and leasehold interests; however, it is far from clear that the second clause groups together all interests in land acquired by the association. The Court provided that sections 5 and 10 of the YMCA Act operate for different purposes.

Further, the appellant argued that the court should apply a purposive interpretation of s. 10 (which furthers the philanthropic objects of the association by recognizing its need to use its assets to fund its activities). As such, s. 10 should be interpreted to apply to all buildings and lands whenever they are used and occupied by the appellant. The Court held that this interpretation would be inconsistent with the plain meaning of the words used in s. 10 as it takes no account of the words "of the said association". As per Bell ExpressVu, it is a principle of statutory interpretation that every word that is used in a statute is to be given meaning and that "when a court considers the grammatical and ordinary sense of a provision, that 'the legislator does not speak in vain'". If all of the words of s. 10 are to be given meaning, then "buildings, and lands ... of the said association" must mean something other than property that the appellant occupies or uses.

Finally, the appellant relied on Kitchener-Waterloo Young Men's Christian Association v. Municipal Property Assessment Corporation, [2007] O.J. No. 3176 where it was concluded that land leased, used and occupied by the Kitchener-Waterloo YMCA (in Kitchener) was entitled to an exemption from property tax. In that case, the original statute, which contained an exemption from taxation (in substantially the same language as s. 10 of the YMCA Act), was amended in 2005 to provide an exemption for all land used or occupied by the association in Waterloo, including leased property. The application judge in the Kitchener-Waterloo case was required to consider whether the 2005 statute also afforded the exemption in question to land in Kitchener. It was concluded that the legislature intended that property leased by the Kitchener-Waterloo YMCA should be exempt from taxation in both Kitchener and Waterloo. That was not the situation here. The YMCA Act contained no such amending language that would suggest that leased properties occupied by the association were intended to be exempt from taxation.

Therefore, the protection afforded by the YMCA Act depends on the words that were used in the context of the municipal tax regime. This would result in local YMCA associations in some cases to be exempt and in other cases not; the exemptions depend on the wording of the private acts, which were put forward at different times and by different proponents, and not for a single or comprehensive legislative purpose.

Tags:  Municipal Tax, Statutory Interpretation, The Toronto Young Men's Christian Association Act, 1923, Assessment Act

Raitman v. Medallion Development Corporation, 2015 ONCA 126

[Cronk, Pepall and Benotto JJ.A.]


Raitman, acting in person

M.P. Maurer, for the respondent

Keywords: Civil Litigation, Endorsement, Extension of Time to Appeal

Facts: The appellants brought a motion to set aside the order of Juriansz J.A., who dismissed their motion to extend the time to set aside the order of Feldman J.A. Specifically, Feldman J.A. dismissed the appellant's motion to extend the time to file a notice of appeal of Boswell J.'s dismissal of their claims against the respondent.


(1) Did Juriansz J.A. err in dismissing the appellants' motion to extend the time to file a notice of appeal of Boswell J.'s order?


The motion was dismissed and costs fixed at $2,000 were payable to the respondent.


(1) No. Juriansz J.A. correctly applied the test for a motion to extend time as set out in Enbridge Gas Distribution Inc. v. Froese, and found that the justice of the case did not require an extension be granted to the appellants. Applying relevant factors from this test, Juriansz J.A. found that there was no evidence to demonstrate that the appellants had formed the intention to appeal Feldman J.A.'s order during the appeal period. Furthermore, he found that a limitation period had expired against the proper defendant, and that there was no merit in reviewing Feldman J.A.'s order. Juriansz J.A. did not make any error in his reasoning or conclusion in this matter. In sum, justice demanded that the appellant's request for an extension be refused.

Tags: Civil Litigation, Endorsement, Extension of Time to Appeal

Canadian National Railway v Kitchener (City), 2015 ONCA 131

[Rouleau, Watt and Pardu JJ.A]


Devereux and A.Campbell, for the appellant

K.Perron, for the respondent City of Kitchener

M.Binetti and D.N.Vaillancourt, for the respondent Hogg Fuel & Supply Limited

Keywords: Civil Litigation, Dismissal for Delay, Rule 24.01, Presumption of Prejudice


The Canadian National Railway Company (CNR) brought an action in 1989 alleging that from 1924 to 1958, the Public Utilities Commission of the City of Kitchener dumped coal tar on land now owned by the respondent Hogg Fuel & Supply Limited, and that some of this coal tar migrated onto CNR's land. The respondents deny that coal tar was disposed of in that fashion. Statements of defence were delivered in 1996 and 1997 from the City and Hogg Fuel. In 2003, the case was assigned to case management and a schedule was approved that required the parties to conduct examinations for discovery, to mediate the dispute on October 14, 2004, and to appear in trial scheduling court on December 1, 2004. Counsel for CNR delayed the trial scheduling court date in order to take additional steps such as to obtain expert reports and transcripts of discoveries. None of the steps advanced as a basis to adjourn the trial scheduling court were ultimately completed. To avoid dismissal of the action under Rule 48, CNR set the matter down for trial on December 16, 2011. In the certification form requesting trial dates, CNR advised the court that its pleadings required amendment, that discoveries had not been completed, that all requests to admit had not been delivered and that documentary production was not complete.

On August 25, 2014, the action was dismissed for delay pursuant to rule 24.01. The motions judge found CNR's delay was "inordinate, inexcusable" and gave rise to a substantial risk that a fair trial of the issues was not possible. CNR appealed this decision. It argued the motion judge erred in concluding the delay after 2003 was unreasonable, that there was a strong presumption of prejudice and that the CNR had not rebutted the presumption of prejudice.


(1) Did the motion judge err in dismissing the action for delay?


Appeal dismissed.


(1) No, the motion judge's decision was not unreasonable or unsupported by the evidence. The case was 25 years old and lay dormant for lengthy periods despite case management efforts directed at bringing it to trial. It was open to the motions judge to find the overall delay from 2003 on was inordinate and inexcusable. A presumption of prejudice flows from lengthy delays. The Court held that given the lengthy delay in this case, the motion judge did not err in finding there was a presumption of prejudice and did not err in concluding that CNR had failed to rebut the presumption. No palpable and overriding error could be demonstrated and the appeal must be dismissed. The costs award of the motion judge was entitled to deference and the Court found no error in the award of costs.

Tags: Civil Litigation, Dismissal for Delay, Rule 24.01, Presumption of Prejudice,

Chijindu v. Prudential Property Management Inc., 2015 ONCA 134

[Cronk, Pepall and Benotto JJ.A]


C.C. Chijindu, for the appellants

Boghosian and S. Taylor, for the respondent

Keywords: Civil Litigation, Endorsement, Appellate Jurisdiction

Facts: The appellants appeal from the judgment of Brown J. of the Superior Court of Justice in which she dismissed their application for a refund of $13,000 from the respondent.


(1) Does the Court of Appeal have jurisdiction to hear this appeal?


The appeal was quashed for lack of jurisdiction, and costs fixed at $4,000 were payable to the respondent.


(1) No. Pursuant to subsection 19(1.2)(c) of the Courts of Justice Act, an appeal lies to the Divisional Court where the final order under appeal dismisses a claim for payment of an amount that is less than $50,000, exclusive of costs. In this case, the appellants' claim under appeal is for $13,000, and therefore the Divisional Court has jurisdiction to hear this appeal and not the Court of Appeal.

Tags: Civil Litigation, Endorsement, Appellate Jurisdiction

Lewis v Theoret, 2015 ONCA 118

[Cronk, Pepall and Benotto JJ.A]


J.J.Richey, for the appellant

D.Piccoli and A.McColl, for the respondent

Keywords: Family Law, Child Support, Summary Judgment


An order for summary judgement was made requiring the appellant to pay retroactive child support in the amount of $37,552 and periodic child support in the amount of $3,823. The appellant appealed the decision and subsequently sought to have the appeal "transferred" to the Divisional Court. At the time of the appeal the retroactive child support and costs award had not been paid. The ongoing child support was being enforced by the FRO.


(1) Should the summary judgment order be set aside?


Appeal dismissed. Costs awarded to the respondent.


No, the award was based on straightforward Guidelines calculations and the monetary amounts were clearly within the jurisdiction of the Divisional Court. The court held that in light of the appellant's disregard of the existing order and the error in bringing the matter to the Court of Appeal rather than the Divisional Court, the panel declined to exercise its discretion to transfer the appeal to the Divisional Court.

Tags: Family Law, Child Support, Summary Judgment

Park v. Whittle, 2015 ONCA 129

[Weiler, Epstein and Brown JJ.A.]


Bedawi Tago, for the appellant

Stephen Chisholm, for Jim Whittle, Dave Maniaci, Christopher Wegelin and the Regional Municipality Niagara Police Service Board

Hassan Ahmad, for Ijaz Ahmad and Surriya Ahmed

Keywords:  Civil Procedure, Limitation Periods


The appellant claims damages for injuries, primarily psychological, arising out of a fire that occurred on October 23, 2009. The action was dismissed as being statute-barred.


(1) Did the judge err in finding the claim to be statute-barred?


No. Appeal dismissed.


The statement of claim was issued September 4, 2013, outside the two-year limitation period prescribed by s. 4 of the Limitations Act.

Relying on discoverability does not assist the appellant as it is clear that he was aware in July 2011 of his psychological difficulties allegedly caused by the fire.

Tags: Civil Procedure, Limitation Periods

Frometa v Oliveira, 2015 ONCA 125

[Cronk, Pepall and Benotto JJ.A.]


R.E. Anka, Q.C., for the appellant

R. Macdonald, for the respondent Yordanys Frometa




Appeal dismissed in accordance with the agreed terms of settlement, with costs payable by the appellant.

Tags: Endorsement

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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