Canada: Ontario Court Of Appeal Summaries (September 10 – 14, 2018)

Last Updated: September 18 2018
Article by John Polyzogopoulos

Good afternoon,

Following are the summaries for the few civil decisions released by the Court of Appeal this week.

Topics covered included trespass by an owner's invitees over lands that were subject to a right of way granted by the owner to the plaintiff, stay pending appeal in the context of the ongoing administration of the residential schools settlement, appealing a judgment for breach of a commercial lease on the basis of fresh evidence (the landlord re-letting the property shortly after judgment, resulting in over-compensation), mental distress damages for negligence claims, jurisdiction and attornment in a custody dispute, and abuse of process in the context of requesting a reconsideration of an appeal.

I want to thank all of our readers for their continued support of this blog, and look forward to receiving any feedback anyone may have on our new format.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Raimondi v. Ontario Heritage Trust, 2018 ONCA 750

[Feldman, Benotto and Brown JJ.A.]


M.M. Title and P. Virc, for the appellants

S. Gandhi and S. Figliomeni, for the respondent Ontario Heritage Trust

P.D.S. Jackson and Sarah Whitmore, for the respondent Nicola Ross

Keywords: Real Property, Easements, Rights of Way, Trespass, Substantial Interference, Fallowfield et al. v Bourgault et al. (2003), 68 OR (3d) 417, Weidelich v de Koning, 2014 ONCA 736


The appellants own a four acre residential property in Caledon (the "Property"). The Property is surrounded by ninety acres of parkland (the "Willoughby Property") owned by the Ontario Heritage Trust (the "OHT"). The only vehicular access to the appellants' residence is a one kilometre driveway through the Willoughby Property. The appellants have an easement in the nature of a right of way to use the driveway for the purpose of accessing the Property. The right of way was conferred by a deed of easement when the OHT severed the Property from the Willoughby Property.

The Willoughby Property is home to numerous hiking trails. The OHT continuously improves existing trails and develops new hiking trails into a network connected to the Bruce Trail. The OHT actively encourages the public to use the trail network. N.R. has published a local guide to hiking trails, which includes trails on the Willoughby Property. The driveway that leads to the Property provides the most popular access point for hikers using the trails. The OHT does not permit the public to drive on the driveway, but the public is expressly invited to walk up the driveway to access the trails.

The appellant's position was that the easement granted them exclusive use of the driveway, and the members of the public who use the driveway to access trails are therefore trespassers.


(1) Did the deed of easement creating the right of way grant the appellants exclusive use of the driveway?

(2) Did the OHT substantially interfere with the appellants' use of the driveway by establishing public hiking trails and inviting the public onto the driveway?

(3) Did the application judge err by dismissing the application for an injunction restraining the publication of N.R.'s hiking guide?

(4) Did the application judge err by ordering costs against the appellants?


Appeal dismissed.


(1) No, the deed of easement creating the right of way did not grant the appellants exclusive use of the driveway. In this case, the easement was expressly created by written agreement. The deed did not convey a right to exclusive use of the right-of-way. The clear language of the deed could not support any other finding.

The application judge found that the language of the deed was "clear and unambiguous in that it makes no reference of a grant to the transferee of exclusive rights to this [right of way]" and the right of way was granted for the limited purposes of ingress and egress, which were not mutually exclusive from other users of the right of way.

A grant of a private right of way ordinarily confers on the grantee only a right to the reasonable use of the way in common with others. The OHT, as grantor, retains all of its rights as owner of the estate in fee simple, except to the extent that those rights are inconsistent with the rights of the grantee granted by the deed. Subject to the express grant in the deed, the OHT retains the right to use the lands as it sees fit and to invite others to use them.

(2) No, the OHT did not substantially interfere with the appellants' use of the driveway by establishing public hiking trails and inviting the public onto the driveway. The appellants have the burden to establish substantial interference. The appellants did not meet this burden.

The appellants' support for substantial interference was: (i) 3,200 visitors walking along the right of way over three years; (ii) the appellants were forced to slow or momentarily stop their vehicles when encountering pedestrians on the right of way; (iii) the presence of pedestrians impeded snow removal; and (iv) unauthorized vehicles entered the right of way six times.

The application judge properly concluded that these occurrences were at most minor and infrequent and did not rise to the level of substantial interference. The appellants did not provide any evidence as to the frequency of use, the size of groups, or the number of times the appellants encountered pedestrians. Further, there was no evidence that the OHT permitted or condoned such use by vehicles. Indeed, the OHT prohibited unauthorized vehicles from making use of the right-of-way, with clear signage to that effect.

(3) No, the application judge did not err in dismissing the application for an injunction restraining the publication of N.R.'s hiking guide. There was no basis for an injunction enjoining N.R. from publishing material stating that the driveway may be used by the public for the purpose of accessing public hiking trails. Indeed, there was no evidence that N.R. ever stated that the Property is public property or otherwise encouraged anyone to trespass on it.

(4) No, the application judge did not err by ordering costs against the appellants. The appellants failed to identify any error in principle that would entitle the Court of Appeal to interfere with the costs decision of the application judge.

Fontaine v. Canada (Attorney General), 2018 ONCA 749

[Sharpe J.A. (In Chambers)]


J. Arvay (Q.C.) and S. Lockhart, for the Moving Party

R. Olschewski, for the responding parties, J.W. and REO Law Corporation

C. Coughlan and B. Thompson, for the responding party, The Attorney General of Canada

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Standing, Procedural Fairness, Class Proceedings, Residential Schools Settlement, Class Proceedings Act, 1992, S.O. 1992 c. 6, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(2), 19, RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44


The Chief Adjudicator of the Independent Assessment Process ("IAP") under the Indian Residential Schools Settlement Agreement ("IRSSA") sought a stay of a Direction issued by the Eastern Administrative Judge which prohibits the Chief Adjudicator from continuing his participation in three appeals. One of those appeals, the REO Appeal, is before the Supreme Court of Canada (J.W. and REO Law Corporation v. Attorney General of Canada et al., SCC Case Number 37725). Two others are before the British Columbia Court of Appeal (Ronnie Gail Scout v. Attorney General of Canada et al., BCCA File No. CA44379; Larry Philip Fontaine et al. v. Attorney General of Canada et al., BCCA File Nos. CA45085 and CA 45093). The REO Appeal is to be heard on October 10, 2018, and the two British Columbia appeals are expected to be heard in November and December. The Eastern Administrative Judge issued the Direction on his own initiative without notice to the Chief Adjudicator or any other party, and apparently without any supporting record. The Direction was issued on September 5, 2018, and directs the Chief Adjudicator to withdraw from the three appeals by September 13, 2018. The respondent, the Attorney General of Canada submitted that as the Direction amounts to an interlocutory case management type order, the Court has no jurisdiction to entertain the appeal. The respondents, J.W. and REO Law Corporation submitted that the Chief Adjudicator lacked the standing to bring the appeal, because he has no right to commence an appeal in his own right, only to participate in appeals brought by others, under certain circumstances.


(1) Does the Court have jurisdiction to entertain the appeal?

(2) Does the Chief Adjudicator have standing to bring this appeal?

(3) Should a stay of the Direction be granted?


Motion granted.


(1) Yes. The order amounts to a final order and, accordingly, the Court has jurisdiction.
Although as a single judge, Sharpe J.A. did not have the final authority to determine the issue of jurisdiction, he still had to deal with this issue in order to consider whether to grant the stay. Because the Chief Adjudicator has participated as respondent to this point, and because the Director requires him to withdraw from the appeals and terminate his participation, it amounts to a final determination of his rights of participation as a party and is a final order. The Court found it had jurisdiction.

(2) Yes. The Court found that although the Chief Adjudicator may not initiate an appeal from an IAP decision in his own right, in the present case he had been named and recognized as a party in the REO appeal. The Direction required his participation as a party in that appeal. Accordingly, the Direction gave rise to an issue affecting the legal rights of the Chief Adjudicator, and he had standing to appeal it.

(3) Yes. The Court applied the well-established three-part test for a stay pending appeal. The applicant must demonstrate that there is a serious issue to be determined on the appeal, that it will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours a stay pending the disposition of the appeal (RJR — MacDonald Inc v Canada (Attorney General). In this case, there was a serious question to be heard regarding procedural fairness. If a stay was not granted, the Chief Adjudicator would be deprived of the opportunity to participate in the REO Appeal, a harm which could not be compensated through other remedies, and the balance of convenience favoured the granting of the stay.

Markham Village Shoppes Limited v. Gino’s Pizza Ltd., 2018 ONCA 746

[Lauwers, Miller and Nordheimer JJ.A.]


J.G. Morrissey, for the appellant

M. Wine, for the respondent

Keywords: Real Property, Landlord and Tenant, Commercial Leases, Damages, Mitigation, Civil Procedure, Appeals, Fresh Evidence, Mercer et al. v. Sijan et al. (1976), 14 O.R. (2d) 12 (C.A.), Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.), R. v. Palmer, [1980] 1 S.C.R. 759


The appellant entered into a 10-year lease of commercial premises owned by the respondent. Within four months of the commencement of the lease, the appellant determined that the premises were not suitable and demanded rescission of the lease. The respondent refused and took the position that the appellant had abandoned or repudiated the lease. The respondent took possession of the premises, sued for damages, and attempted to re-let in mitigation.

The respondent brought a motion for summary judgment for damages for unpaid rent and prospective damages for future rent. The motion judge rejected the appellant's various defenses and awarded judgment for $85,697.96, which included a claim for 22 months' prospective rent, discounted for present value. The motion judge accepted the respondent's evidence that the average time to lease one of the ten units in the building was 22 months, and the respondent's argument that 22 months would therefore be an appropriate measure for prospective damages.

The appellant did not appeal the finding of liability. It originally appealed the award of damages on the basis that the motion judge (1) was premature in adjudicating damages; and (2) erred in granting summary judgment on the basis of the limited record before him. However, these grounds of appeal were overtaken by events: Within 2 months of the release of the motion judge's decision, the respondent re-let the premises to a new tenant.

The appellant sought leave to introduce fresh evidence on the appeal attesting to the new lease of the premises, which took place approximately 10 months after the appellant's repudiation of the lease. The appellant accepted that its original basis for the appeal was largely moot. There was no longer any dispute about how long it would take to re-let the premises. There remained, however, a significant dispute as to how damages should be assessed: whether it is just a matter of taxes, maintenance and insurance ("TMI") for the months in which the premises were vacant, or whether more was required for base rent or the value of an "ecologizer" unit that the appellant was obligated to install but did not.


Should the court grant the appellant's motion to adduce fresh evidence and allow the appeal on that basis of that evidence?


Appeal allowed.


Yes. Although the principle of finality requires, generally, that damages for prospective loss be assessed at the time of trial and not revisited, the court has recognized a limited exception where: (1) a supervening event occurs after trial but before the hearing of the appeal; (2) evidence of that event is needed to address issues raised on appeal; and (3) not receiving the evidence could result in an injustice: Mercer et al. v. Sijan et al. (1976), 14 O.R. (2d) 12 (C.A.). When these criteria are met, a court may admit the evidence under the tests for the admission of fresh evidence.

The court held that this was such a case, as the supervening event – the re-letting of the premises 12 months earlier than the motion judge projected – would mean that the respondent could receive double recovery over that period. A fresh review of the damages to which the respondent was legally entitled was required as a result of that development. The judgment was therefore set aside and the issue of damages was remitted to the court below for reconsideration based on the new circumstances.

Capelet v. Brookfield Homes (Ontario) Limited, 2018 ONCA 742

[Sharpe, van Rensburg and Brown JJ.A.]


J.S. Bal and D. Perlin, for the appellant

G.K. Kramer and A. Baker, for the respondent

Keywords: Torts, Negligence, Foreseeability, Damages, Mental Distress, Remoteness, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Turczinski v. Dupont Heating & Air Conditioning Ltd. (2004), 246 D.L.R. (4th) 95 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 581


The appellant purchased a home designed and constructed by the respondent in 1997. The appellant discovered mould in the home in 2002. The respondent promptly remedied the mould. The appellant then sold the house with no loss in value.
The appellant brought an action that was limited to claims for damages for his psychological and emotional injuries, physical illness, and for certain out-of-pocket expenses. The motion judge dismissed the action.

The appellant appealed on two grounds. First, the appellant asserted that the motion judge ignored evidence that the appellant was a person of ordinary fortitude, which was relevant to the determination of whether such injuries would be reasonably foreseeable. Second, the appellant alleged that the motion judge erred in concluding that the appellant's loss was not a foreseeable consequence of a faulty home construction by referring to the limited warranty and exclusion language in the Agreement of Purchase and Sale.


(1) Did the motion judge err in concluding that the appellant was not a person of ordinary fortitude?

(2) Did the motion judge err in referring to the limited warranty and exclusion language in the Agreement of Purchase and Sale?


Appeal dismissed.


(1) No. The motion judge had to determine whether it was reasonably foreseeable that a person of ordinary fortitude would have suffered a serious injury of the type that the appellant suffered. The onus was on the appellant to demonstrate that his reaction to the mould was that of a person of ordinary fortitude. The motion judge considered all of the evidence, including the appellant's expert evidence, and concluded that the appellant had not met his burden of proof.

(2) No. The motion judge had to determine whether the injuries would have been foreseeable to the respondent. It was relevant to refer to the Agreement of Purchase and Sale because it spoke to what the parties would have anticipated at the time the contract was entered into. There is no indication that the motion judge treated the Agreement of Purchase of Sale as determinative of the issue of remoteness of damages.

Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743

[Doherty, Brown and Roberts JJ.A.]


M.S. and E.B., acting in person

S. Zucker, K. Prehogan and K. A. Mullin, for the respondent

Keywords: Civil Procedure, Appeals, Motions for Reconsideration, Abuse of Process, Hoang v. Mann Engineering Ltd., 2015 ONCA 838, Rules of Civil Procedure, Rules 59.06(1) and 59.06(2)(d)


In January 2018, the Ontario Court of Appeal dismissed the appellants' motion for reconsideration of an April 2017 decision (the "Appeal Order") dismissing the appeal of one appellant and allowing, in part, the appeal of the other appellant. The appellants brought a second motion for reconsideration.


(1) Should the Court of Appeal reconsider the appellants' arguments?

(2) Did the Court of Appeal misunderstand the basis for the first motion to reconsider?

(3) Did Midland have standing to proceed with the Appeal?

(4) Could Midland's witnesses' evidence stand at trial?

(5) Was the appellants' motion frivolous, vexatious, or an abuse of the process of the court?


Appeal dismissed.


(1) No. The appellants' affidavit in support of the second motion to reconsider simply repeated the arguments that they made in their appeal. Those arguments were considered and dealt with on appeal and in the first motion to reconsider. The appellants abused the process of the court by recycling arguments that had already been considered and rejected.

(2) No. The appellants claimed that they brought their motion under r. 59.06(1) of the Rules of Civil Procedure, not r. 59.06(2)(d) of the Rules of Civil Procedure. However, in their factum on the first motion to reconsider, the appellants clearly stated that they were relying on r. 59.06(2)(d). In that same factum, the appellants also advanced an argument under r. 59.06(1). In doing so, they advanced a theory of damages that was not argued on the appeal. Rule 59.06(1) had no application in those circumstances.

(3) Yes. While Midland was wound up in 2017, it obtained judgement against the appellants as a result of a February 2014 trial decision. Moreover, Midland had not been wound up at the time the appeal was argued in October 2016.

(4) Yes. The appellants claimed that because of Russian media reporting of criminal charges laid against two of Midland's witnesses, said witnesses' evidence could not stand at trial. However, the subject-matter of those charges was not relevant to the current action.

(5) Yes. The appellants attempted to reargue their appeal on the first motion to reconsider, which was dismissed after a written hearing. The appellants' attempt to re-argue the appeal was not a proper use of r. 59.06. Instead, it was an abuse of the process of the court.

Kunuthur v. Govindareddigari, 2018 ONCA 730

[Sharpe, Juriansz and Roberts JJ.A.]


H. Dhillon and S. Grewal, for the applicant (respondent)

M. Kaur and K. Ramnanan, for the respondent (appellant)

Keywords: Family Law, Custody, Relocation, Jurisdiction, Attornment, Children's Law Reform Act, R.S.O. 1990, c. C.12, Office of the Children's Lawyer v. Balev, 2018 SCC 16, Van Damme v. Gelber, 2013 ONCA 388, Wolfe v. Wyeth, 2011 ONCA 347


The appellant and the respondent married in 2004 and had a son in 2005. The appellant moved their son to India in 2013 and subsequently brought petitions for divorce and custody in India. In 2014, Sproat J. granted an order that the appellant return the child to Ontario, and that the father be granted temporary custody. The mother did not return the child to Ontario.

In 2018, the respondent brought a motion to have the appellant found in contempt of Sproat J.'s order. The motion judge found that the child's habitual residence was Ontario and so proceeded on the basis that the Ontario courts had jurisdiction. However, he did not find the appellant in contempt.

The appellant appealed the motion judge's order on the grounds that the motion judge erred in finding that Ontario had jurisdiction, as well as on the grounds that the respondent should have been granted sole custody.


(1) Did the motion judge err in finding that the Ontario courts had jurisdiction?

(2) Did the motion judge err in awarding the respondent sole custody of the child?


Appeal allowed.


(1) Yes. A party attorns to a court's jurisdiction when it goes beyond simply challenging the jurisdiction of that court and, instead, litigates a claim on the merits. The respondent challenged the merits of the appellant's claims in India, and thus attorned to the Indian courts' jurisdiction.

(2) Yes. The motion judge failed to consider the best interests of the child, which he was required to do pursuant to section 24 of the Children's Law Reform Act.


Chavdarova v. The Staffing Exchange Inc., 2018 ONCA 744

[Rouleau, Pardu and Benotto JJ.A.]


L.C., self-represented

M. Polvere, for the respondent

Keywords: Civil Procedure, Appeals, Jurisdiction, Monetary Limits, Courts of Justice Act, s. 19(1)(a), McGrath v. Woodrow (2001), 52 OR (3d) 732 (C.A.)

Dorasamy v. Dorasamy, 2018 ONCA 747

[Rouleau, Pardu and Benotto JJ.A.]


C.D., acting in person

D. Willer, for the respondent

Keywords: Family Law, Child Support, Child Support Guidelines, 52 OR (3d) 732 (C.A.)

LaFramboise v. Kaisersingh, 2018 ONCA 734

[Sharpe, van Rensburg and Brown JJ.A.]


D. L. , in person

D. J. Brown, for the respondents

Keywords: Contracts, Solicitor and Client, Fees, Summary Judgment (C.A.)


R. v. Plein, 2018 ONCA 748

[Sharpe, Brown and Paciocco JJ.A.]


B. Greenshields, for the appellant

P. Fraser, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Death, Manslaughter, Inconsistent Verdicts, R. v. Pittiman, 2006 SCC 9, R. v. McShannock, 55 C.C.C. (2d) 53 (Ont. C.A.), [1980] O.J. No. 128, R. v. Creighton, [1993] 3 S.C.R. 3, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Truscott, 2007 ONCA 575, Criminal Code, ss. 683(1)(c)

R. v. Rover, 2018 ONCA 745

[Doherty, Pepall and Nordheimer JJ.A.]


K. Wells, for the appellant

J. Streeter, for the respondent

Keywords: Criminal Law, Drug Offences, Evidence, Exclusion, Unreasonable Search and Seizure, Canadian Charter of Rights and Freedoms, s. 9, s. 24(2), s. 10(b), R. v. Suberu, 2009 SCC 33, R. v. Wu, 2017 ONSC 1003, R. v. Pino, 2016 ONCA 389, R. v. Grant, 2009 SCC 32

R. v. Robinson, 2018 ONCA 741

[Lauwers, Pardu and Paciocco JJ.A.]


I. R., acting in person

M. H., duty counsel

G. C., for the respondent

Keywords: Criminal Law, Robbery, Drug Offences, Amending Indictment, Criminal Code, R.S.C. 1985, c. C-46, s. 683(1)(g), R. v. Cinous, 2002 SCC 29, R. v. Johnson (1977) (B.C.C.A.), R. v. Manley, 2011 ONCA 128

R. v. A.R., 2018 ONCA 738

[MacPherson, Huscroft and Nordheimer JJ.A.]


B. H. Greenspan and M. M. Biddulph, for the appellant

K. Doherty, for the respondent

Keywords: Criminal Law, Sexual Assault, Assault, Uttering Threats

R. v. G.E., 2018 ONCA 740

[Lauwers, Pardu and Paciocco JJ.A.]


G.E., acting in person

B. Vandebeek, duty counsel

N. Rivers, for the respondent

Keywords: Criminal Law, Possession of Firearm, Criminal Code, s. 95(1), Youth Criminal Justice Act, s. 51(1)

R. v. Klickermann, 2018 ONCA 739

[Lauwers, Pardu and Paciocco JJ.A.]


J. K., acting in person

H. Freeman, for the respondent

Keywords: Criminal Law, Impaired Driving, Summary Conviction

R. v. Banovac, 2018 ONCA 737

[Lauwers, Pardu and Paciocco JJ.A.]


A. Ohler, for the appellant

J. Clark, for the respondent

Keywords: Criminal Law, Possession of Narcotics, Trafficking

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

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John Polyzogopoulos
Events from this Firm
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You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions