Canada: Court Of Appeal Summaries (April 11-15, 2016)

Last Updated: April 20 2016
Article by John Polyzogopoulos

Following are this week’s summaries of civil decisions released by the Court of Appeal. Topics covered included limitation periods, summary judgment, Crown wardship, wrongful death, insolvency and mortgages. Two of those matters were motions for stays pending appeal, both of which were denied and both of which involved lawyers from our office (we went one for two, congratulations Eric Golden).

Civil Decisions

Haunert-Faga v. Caprara, 2016 ONCA 266

[Sharpe, Juriansz and Roberts JJ.A.]


Maurice J. Neirinck, for the defendant, Giuliana Caprara, and for the appellant, Faga Group Construction Limited

Sean Lawler, for the appellant, Presta Caparrotta LLP

Robert Rueter and Sara J. Erskine, for the respondent, Christine Marie Haunert-Faga

Keywords:  Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Standard of Review, Mixed Fact and Law, Deference


The appellants moved for summary judgment to dismiss the claims on the grounds that they were statute-barred. The parties agreed that all of the evidence necessary for resolution of the limitation period issue was before the court and that the trial judge would be in no better position to decide it. The appellants now appeal from the motion judge's dismissal of their motion. The issue before the motion judge was whether the respondent had commenced her claim within two years of the time she knew or ought to have known, through the exercise of reasonable diligence, the facts necessary to support her claims.

Issue:  Did the motion judge err in dismissing the motion for summary judgment?

Holding: Appeal dismissed.


The motion judge gave careful reasons explaining the basis for these challenged findings. They were supported by the evidence and entitled to deference on appeal. He identified the correct legal test to determine the issue of discoverability. His application of the facts he found to that test was a finding of mixed fact and law that also attracts deference on appeal. The Court of Appeal did not agree that there was any basis to interfere with the motion judge's determination that the appellants failed to establish a limitation defence.

Children's Aid Society of Toronto v. A.F., 2016 ONCA 267

[Sharpe, Juriansz and Roberts JJ.A.]


Ghina Al Sewaidi, for the appellant

Justine Sherman, for the respondent

Lauren Israel, for the Office of the Children's Lawyer

Keywords: Family Law, Child Protection, Custody, Crown Wardship


This was an appeal from the dismissal of the appellant mother's appeal from a Crown wardship order in relation to three of her children. The appellant's position was that an order should be made placing her children with the appellant's mother. In lengthy and detailed reasons, the trial judge rejected that position and provided fully considered reasons explaining why she concluded that a placement with the maternal grandmother would be inappropriate. The appeal judge found no error in the trial judge's reasons and upheld her decision.


(1) Was the appellant inadequately represented by her trial counsel?

(2) Did the trial judge err in relation to her use of past parenting evidence regarding the children's maternal grandmother?

Holding: Appeal dismissed.


(1) No. The court reviewed the appellant's written argument on the inadequacy of assistance point and the affidavit filed by the appellant's trial counsel in answer to that allegation. The court agreed with the appeal judge that there was no merit to this ground of appeal.

(2) No. There was considerable evidence before the trial judge as to the lengthy history of the maternal grandmother with child protection agencies. While the grandmother's own child protection file was closed following the trial, that alone did not alter the troubling evidence before the court demonstrating the grandmother's lack of suitability for a custodial placement. In addition, the court found the maternal grandmother had shown limited interest in the children, and she had been uncooperative with the respondent Children's Aid Society leading up to the trial.

The court further rejected the appellant's submission that the respondent Children's Aid Society failed in its duty to investigate the possibility of placing the children with the maternal grandmother. It was satisfied on the record before it that any investigation would not have altered the outcome of the proceeding.

Essar Steel Algoma Inc. (Re), 2016 ONCA 274

[Gillese J.A. (In Chambers)]


Lou Brzezinski and Alexandra Teodorescu, for the moving party United Steelworkers Union Local 2251

Ashley John Taylor and Lee Nicholson, for the Applicants

David Rosenblat, for Deutsche Bank, the DIP Lenders and the Term Lenders

Clifton P. Prophet, for the Monitor, Ernst & Young Inc.

Massimo Starnino and Debra McKenna, for the United Steelworkers Union Local 2724

Keywords: Bankruptcy and Insolvency, Companies' Creditors Arrangement Act, Labour Law, Unions, Collective Agreements, Grievances


Essar Steel Algoma Inc. ("Algoma") and certain related companies (the "Applicants") came under the protection of the Companies' Creditors Arrangement Act ("CCAA") by court order in November 2015.

Local 2251 of the United Steelworkers Union ("Local 2251") brought this motion to stay the CCAA judge's March, 2016 order (the "Order") pending the disposition of its motion for leave to appeal that Order. The Order established a summary process with condensed timelines to resolve grievances.

Local 2251 argues leave should be granted because the proposed appeal raises points of significance to the practice, including whether suspension of grievances under the CCAA constitutes an alteration of the collective agreement, contrary to s. 33 of the CCAA.

The Applicants are in the midst of a sale and investment solicitation process ("SISP") approved by court order in February, 2016. It should be completed in August, 2016.

Locals 2251 and 2724 of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Services Workers International Union ("USW") represents most of the Applicants' employees. Local 2251 is the exclusive bargaining unit and represents approximately 2,235 members. Algoma and Local 2251 have a collective agreement (the "Collective Agreement"). The Collective Agreement has a three-step process for resolving grievances. There are approximately 3,000 unresolved grievances dating back as far as 2005.

A general claims process was approved by an order in January, 2016 to determine claims against the Applicants and their directors and officers. The USW and Locals requested an independent claims procedure for the grievances. The Applicants agreed, but the parties would work together to develop a grievance claims procedure.

The order to obtain court approval of the grievance process was granted in March, 2016 (the "Order"). It provides a streamlined procedure. Local 2251 is to prepare a list of grievances that identifies employees, briefly summarizes the grievance and relief or remedy sought. Claims not on the list will be barred.

Since the Order, the Chief Arbitrator and Deputy Chief Arbitrator met with Algoma, Local 2251 and Local 2724. Algoma delivered grievance information; many grievances shared common issues. The parties met with the Deputy Chief Arbitrator to discuss common grievances that could be resolved together. Local 2251 requested an adjournment. Next, either Local 2251 agreed to continue the meeting without being present, or the Deputy Chief Arbitrator refused to adjourn the meeting and Local 2251 refused to re-attend. The meeting continued without Local 2251.

In his report, the Deputy Chief Arbitrator reiterated that a modified approach is being used for the grievance claims procedure; it is less onerous than what was provided for in the Order. The modified approach does not require Local 2251 to provide the summary of each grievance it prepared. Because this takes time, Algoma relieved four Local 2251 employees from work to complete the list.

As of April, 2016, 36 of 48 grievances filed by Local 2724 and its members have been consensually resolved under the grievance claims procedure provided for in the Order.

Issues: Should a stay of proceedings be granted?

Holding: Motion dismissed.


No. Granting a stay in this case is not in the interests of justice. Granting a stay pending leave to appeal will ensure the outstanding grievance claims will not be fully addressed by August, 2016.

RJR MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 sets out the test for a stay pending appeal:

  1. there is a serious question to be determined on the appeal, should leave be granted;
  2. it will suffer irreparable harm if the stay is not granted; and
  3. the balance of convenience favours granting the stay.

The focus must be on whether a stay is in the interests of justice.

  1. Serious Question

This question has a low threshold and requires a court to make a preliminary assessment of the merits. If leave to appeal is required (as in this case), then the moving party must demonstrate there is at least a "reasonable prospect" that leave will be granted.

Leave to appeal is granted sparingly in CCAA proceedings, only where there are serious and arguable grounds. The stringent test in this scenario is:

  1. the point on the proposed appeal is of significance to the practice;
  2. the point is of significance to the action;
  3. the appeal is prima facie  meritorious; and
  4. the appeal would not unduly hinder the progress of the action.

This test reflects Parliament's intention to restrict appeal rights.

Local 2251 does not meet this test. It is unlikely leave will be granted and the Notice of Motion raises well-settled points of law with regards to the paramountcy of CCAA proceedings.

An appeal would unduly hinder progress in the CCAA proceedings. The judge has the power to establish a procedure to resolve matters.

  1. Irreparable Harm

Local 2251 submits it will suffer irreparable harm if a stay is not granted because it does not have the human resources to summarize outstanding grievances, the grievances cannot be addressed properly, it cannot carry out its duty of fair representation because of constraints and it cannot fully or properly be involved in the SISP process because its efforts are going to the grievance process.

The court held that while the order may place stress and strain on Local 2251, it does not amount to irreparable harm.  There are ways Local 2251 can lighten its workload. For example, Local 2251 can move to amend or vary the Order to the CCAA judge. Local 2251 has not fully explored various options.

  1. Balance of Convenience

The court must determine which party will suffer the greater harm from granting or refusing the stay. Based on the CCAA judge's finding that the Order would assist the Applicants and it would be detrimental to stay the grievance claims, granting the stay motion would lead to greater harm to the Applicants and stakeholders in the CCAA proceeding, including Local 2251. The stay would delay the determination of the grievance claims.

Hashemi-Sabet Estate v. Mazzulla, 2016 ONCA 273

[Weiler, Cronk and Benotto JJ.A.]


Alfred Schorr, for the appellants

Alan L. Rachlin and Emily Casey, for the respondents

Keywords: Torts, Negligence, Negligent Misrepresentation, Wrongful Death, Special Relationship, Duty of Care, Foreseeability, Summary Judgment

Facts: The deceased – an adult male who could not swim – drowned in Lake Simcoe while he and his family were visiting the respondents' cottage. A police report indicated that witnesses observed that the wind blew the deceased, who was on an inflatable ring, out into the open lake and that he either fell or jumped off the inflatable ring in approximately 10-12 feet of water, possibly in a panicked state, resulting in his demise.

His estate and the surviving family members brought an action alleging negligence on the part of the respondents for failing to warn the deceased of the dangers of going onto the lake; failing to provide him with a life jacket; failing to stop him from going onto the lake; and failing to supervise him. In support of their negligence claim, the appellants primarily relied on the allegation that the respondents had previously told the deceased that the lake was safe and that one could walk out for miles without the water going above one's knees.

The action was dismissed on a summary judgment motion. The motion judge concluded that there was no special relationship between the parties, no duty of care owed by the respondents and no foreseeable risk of harm. Further, there was no evidence to suggest that the lake was unsafe. It only became unsafe when, for reasons that could not possibly have been known to the respondents, the deceased chose to get onto the inflatable ring and place himself in peril. The estate and the family members appealed.


(1) Did the trial judge err in finding that the representations allegedly made to the deceased were insufficient to support a finding of negligence?

Holding: Appeal dismissed.


(1) No. In these circumstances, no relationship of supervision or control by the respondents over the deceased existed, nor did the respondents create or control a risky situation, giving rise to a duty to warn.  The motion judge's finding of no special relationship between the parties was fatal to the appellants' claim that the respondents owed a duty of care to the deceased. The motion judge concluded that any representation made to the deceased concerning the lake was not relied upon. The deceased had been in the water before, had gone in deeper than his knees, knew he could not swim, was well educated and sober. On this basis as well, the respondents did not owe a duty of care to protect the deceased from, or warn him of, obvious dangers beyond their property over which they had no control.

Toronto-Dominion Bank v. Hagey, 2016 ONCA 270

[van Rensburg J.A. (In Chambers)]


Allan Rouben, for the appellants

Eric Golden, for the respondent

Keywords: Real Property, Mortgages, Planning Act, s. 50(3)(b), Summary Judgement, Rectification, Stay Pending Appeal, Rules of Civil Procedure, Rule 63.02(1)(b), Irreparable Harm


The respondent, Toronto-Dominion Bank (the "Bank") was granted summary judgment to rectify two mortgages that are registered against title to adjacent properties owned by the appellants. The first property contained the appellants' home and is registered in the Registry system (the "Registry Part").  The second property is vacant and is registered in Land Titles (the "Land Titles Part").

The Bank took as security for a $269,250 loan to the appellants a mortgage over each of the two parcels of land. Mortgage documents were executed and registered with the terms of the mortgages identical.  However, the mortgages were in breach of s. 50(3)(b) of the Planning Act as a result of the mortgages not being registered simultaneously. As well, they were in breach for not having the Land Titles mortgage reference the Registry Part and the Registry mortgage reference the Land Titles Part.

The motion judge found that the common intention of the parties was for the Bank's loan to be secured by both parcels of land and rejected the appellants' explanation for why the mortgage was only attached to the Registry part.

Issues: Should a stay pending appeal under rule 63.02(1)(b) be granted?

Holding: Motion dismissed.

Reasoning: No. The appellants did not meet the three-part test for a stay set out in Circuit World Corp. v. Lesperance (1997), 33 O.R. 3d) 674 (C.A.). First, the appellants' argued that rectification should not be granted in this case because this is a situation where the Planning Act was violated when the mortgages were registered on different days.  The motion judge granted the amendment of each mortgage so that each would refer to the other and found it was the intention of the chargor to charge the lands simultaneously.  The motion judge applied settled principles in ordering the rectification of the mortgage documents so that it would be clear that both parts were mortgaged to the Bank as part of a single transaction.  The motion judge relied on documents the appellants had executed themselves that showed their intention to mortgage both parcels of land.  This is a finding of fact that was open to the motion judge on the evidence which overwhelmingly supported his conclusion.

The court found no merit in the argument for denying relief to the Bank because it did not notice the violation of the Planning Act when it originally sought enforcement of the mortgages. This was not a situation where a party knew of another's mistake and was attempting to take advantage of it.  It would be unfair to refuse rectification where the appellants had the benefit of the Bank's loan and a shared intention that both parcels would act as a security.

Second, relying on Re Regal Constellation Hotel Ltd., (2004), 71 O.R. (3d) 355 (C.A.), the appellants argued that they would suffer irreparable harm without a stay because their ability to pursue the appeal would be thwarted.  The right to appeal will not be lost because Regal involved a vesting order that without a stay effected a conveyance of property.  This case involves a power of sale proceeding that may result in the transfer of the subject properties before the appeal is heard.  However, it is not a harm that cannot be compensated for in money.

The loss of the appellants' home might be irreparable harm.  However, they are bankrupt and if they were successful on appeal, the properties would vest in their trustee and only the unsecured creditors would stand to gain (of which the Bank would represent 68%).  Based on the evidence, the court was doubtful that the appellants would be successful in negotiating with the trustee to buy back their properties.

Civil Endorsements

Meridian Credit Union Limited v. Baig, 2016 ONCA 265

[Strathy C.J.O., LaForme and Huscroft JJ.A]


Milton A. Davis and John Adair, for the appellant

J. Anthony Caldwell, for the respondent

Clifford Lax, Q.C., James Renihan and Linda Galessiere, for the interveners Miller Thomson LLP and Peter Kiborn

Keywords: Costs, Intervener


Ontario Review Board Decisions

Othen v. Robertson, 2016 ONCA 268

[Sharpe, Juriansz and Roberts JJ.A.]


Lawrence Othen, in person

D'Arcy J. Hiltz, as amicus

Keywords: Amicus, Involuntary Patient, Capacity, Consent, Appeal Dismissed

Criminal Decisions

R. v. D.B.M., 2016 ONCA 264

[MacPherson, MacFarland and LaForme JJ.A.]


D. Edwin Boeve, for the appellant

Sarah Shaikh, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Evidence, Air of Reality, R. v. Keller, Appeal Dismissed

R. v. Zaba, 2016 ONCA 167

[Watt, Lauwers and Huscroft JJ.A.]


Erec Rolfe, for the appellant

Dena Bonnet, for the respondent

Keywords: Criminal Law, Assault Causing Bodily Harm, Assault, Unlawful Confinement, Use of a Firearm, Dangerous Driving, Credibility, Reliability, Hearsay, R. v. Kienapple, R. v. B. (K.G.), Appeal Allowed in Part

R. v. A.F., 2016 ONCA 263

[Feldman, Gillese and Huscroft JJ.A.]


Russell Silverstein, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Exploitation, Sexual Assault, Possession of Child Pornography, Evidence, Credibility, Different Standards of Scrutiny, R. v. Kienapple, R. v. W.(D.), Appeal Dismissed

R. v. Fercan Developments Inc., 2016 ONCA 269

[Laskin, LaForme and Pardu JJ.A.]


Croft Michaelson, Q.C., and Kevin Wilson, for the appellant, Her Majesty the Queen

Brian Greenspan and Naomi Lutes, for the respondent, Fercan Developments Inc.

William Friedman and Patrick Bakos, for the respondent, GRVN Group Inc.

Robert Malen and Robert Drake, for the respondent, FirstOntario Credit Union Ltd.

Louis P. Strezos, for the intervener, the Criminal Lawyers' Association

Keywords: Criminal Law, Controlled Drugs and Substances Act, s.16, Evidence, Costs, Forfeiture, Jurisdiction, Appeal Dismissed

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
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