Canada: Ontario Court Of Appeal Summaries (October 15 – 19, 2018)

Last Updated: October 23 2018
Article by John Polyzogopoulos

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

All the decisions this week were procedural in nature. One of those was yet another decision in Fontaine v Canada, the Residential School Settlement case, with


Fontaine v. Canada, 2018 ONCA 832

[Sharpe J.A. (In Chambers)]


A. Faith and S. Lockhart, for the moving party

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

Keywords: Civil Procedure, Appeals, Jurisdiction, Class Proceedings, Residential School Settlement, Orders, Stay Pending Appeal, Functus Officio, Administrative Law, Procedural Fairness, Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, Manos Foods International Inc. v Coca-Cola Ltd. (1999), 180 DLR (4th) 309 (Ont. C.A.)


On September 5, 2018, the Eastern Administrative Judge for the Indian Residential School Settlement Agreement ("IRSSA"), on his own motion and without notice to any party, issued a Direction (the "First Direction") prohibiting the Chief Adjudicator for the Independent Assessment Process ("IAP") from continuing his participation in three appeals, one of which was to be argued before the Supreme Court of Canada on October 10, 2018. The Chief Adjudicator filed a Notice of Appeal against the First Direction and moved for a stay pending the hearing of the appeal, which was granted by the Ontario Court of Appeal on September 12, 2018. The Court of Appeal further directed the appeal against the First Direction be heard on November 23, 2018.

On September 27, 2018, the Eastern Administrative Judge issued, on his own motion and without notice to any party, a Second Direction (the "Second Direction") which rescinded the First Direction. The Second Direction also appointed an amicus curiae and directed him to bring a Request for Direction ("RFD") on five issues concerning the Chief Adjudicator which motivated the First Decision before two other supervising judges from the Supreme Court of Yukon and Superior Court of Quebec respectively. The Chief Adjudicator filed a Notice of Appeal against the Second Direction, moving for a stay pending the determination of the appeal and asking that the second appeal be heard at the same time as the appeal from the First Direction.


(1) Should a stay pending determination of the appeal be granted and the second appeal heard at the same time as the first appeal?


Motion granted.


(1) Yes. The interests of justice favour granting a stay and ordering the second appeal to be heard with the appeal from the First Direction. First, the Second Direction is a final order from which an appeal lies to the Ontario Court of Appeal because it has the effect of ending the appeal from the First Direction, since the Chief Adjudicator cannot appeal from an order that is no longer in effect. The Second Direction therefore removes some of the issues raised in that appeal to another tribunal outside the jurisdiction of the Ontario courts. As per Manos Foods International Inc. v Coca-Cola Ltd. (1999), 180 DLR (4th) 309 (Ont. C.A.), an order that finally determines the forum for a dispute is a final order for the purposes of appeal even though substantive issues remain to be determined by the court or tribunal held to have jurisdiction.

Secondly, there were serious issues to be tried because the Second Direction was made without notice or a hearing, making it arguable that it was made in violation of the principles of procedural fairness. It was unprecedented for a judge to purport to rescind an order after it was made, appealed, and stayed. It was arguable that the Second Direction was issued in violation of the functus officio principle, which is meant to allow finality of judgments from courts which are subject to appeal. As per the Supreme Court of Canada decision in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 79, allowing a court appealed from to vary its orders would allow that court to assume the function of an appellate court and deny litigants a stable basis from which to launch an appeal. It was also arguable that the Second Direction attempts to short-circuit the appeal to the Ontario Court of Appeal from the First Direction in declaring the appeal "largely moot" and purporting to confer jurisdiction on two extra-provincial judges to decide some of the issues raised by the appeal. Additionally, it was arguable that the Court Administration Protocol which governs the RFD process does not contemplate referring issues such as those the Eastern Administrative Judge identified to a panel of two judges from different provinces.

The Court then found that the Chief Adjudicator would suffer irreparable harm and that the balance of convenience favoured granting a stay. Irreparable harm could flow from allowing two parallel proceedings to unfold at the same time due to the clear risk of inconsistent results, and conflicting results would also cause harm by bringing the administration of justice into disrepute. The balance of convenience favoured granting a stay because it would allow the proceedings to unfold in an orderly manner and avoid duplicate results since the propriety of the RFD process depends upon the correctness of the Second Direction.

Van Aert v. Sweda Farms Ltd. (Best Choice Eggs) , 2018 ONCA 831

[Rouleau, Roberts and Fairburn JJ.A.]


Varoujan Arman and Jessica Wuthmann, for the appellant

P. Morrissey and I. Wadhwa, for the respondents

Keywords: Civil Procedure, Orders, Dismissal for Delay, Rules of Civil Procedure, Rule 48, Chrisjohn v. Riley Estate, 2015 ONCA 713


The Appellant is in the business of producing, grading, and selling eggs. The Respondents are egg suppliers. The Appellant and Respondents conducted business together pursuant to various supply agreements, which culminated with each side claiming that the other was in breach of the agreements. The Respondents ultimately brought an action against the Appellant.The Appellant counterclaimed.

At trial, the Appellant's previous counsel was granted an adjournment of the counterclaim on terms that included consenting to a judgment in the action in favour of the Respondents in the amount of $164,560.92, which funds were to be paid into court, as well as being permitted to move to add the Respondents as defendants to an existing Toronto action. The Appellant did not pay the funds into court, bring a motion to add the Respondents as defendants to the Toronto action, or take any further steps to advance the counterclaim.
The Appellant returned to court five years after the judgment was entered, seeking an order to: (1) permit it to proceed with the counterclaim once it paid the judgment funds into court, (2) permit it to amend its counterclaim, and (3) fix a timetable for the remaining steps in the litigation.

The motion was dismissed. The motion judge concluded that there was no rule governing a request to belatedly comply with an order. Instead, it most closely approximated a motion to set aside an order dismissing an action for delay pursuant to r. 48 of the Rules of Civil Procedure.

The motion judge placed the onus on the Appellant to establish: (1) that there is an acceptable explanation for the litigation delay; and (2) the Respondents would suffer no non-compensable prejudice if the counterclaim was permitted to proceed.

The motion judge did not accept any explanation for the delay. She also determined that there was actual prejudice, as the Appellant sought to renew the counterclaim, pursue increased damages, and set a timetable for further steps that would involve increased costs for the Respondents.
The Appellant appealed on the grounds that the motion judge applied the wrong legal test.


(1) Did the motion judge apply the wrong legal test?


Appeal dismissed.


(1) No. The motion judge did not err in analogizing from the situation before her to Rule 48 of the Rules of Civil Procedure. The Appellant was in default of an order and was seeking an indulgence from the court. It was appropriate that the onus be on the Appellant to provide an explanation for the delay. Further, it was open to the motion judge to conclude that the Appellant knew of previous judgments against it.

The Court also noted that the motion judge did not err in concluding that the Respondents would suffer actual prejudice from the revival of the counterclaim. That is, the Appellant attempted to bring a claim that would have been tried five years earlier, and did not file any materials on the motion to establish that there would be no prejudice from the delay. Instead, the Appellants asserted that the Respondents did not lead evidence of actual prejudice. However, there was no onus on the Respondents to do so.

Aluminum Window Design Installations Inc. v. Grandview Living Inc., 2018 ONCA 838

[Benotto J.A. (Motion Judge)]


G. Corsianos, for the appellants

G. Hemsworth, for the respondents

Keywords: Civil Procedure, Orders, Setting Aside, Appeals, Jurisdiction, Rules of Civil Procedure, Rules 19 & 37, Halow Estate v Halow (2002), 59 OR (3d) 211 (CA), Paulsson v Cooper, 2010 ONCA 21


The respondent commenced an action against the appellants for unpaid work stemming from a contract to provide aluminum windows and glazing for the appellants' condominium project. The respondent attempted to arrange a discovery plan. Ultimately, almost a year later, Master Muir granted an order establishing a discovery plan, which the appellants then failed to comply with. The respondent then properly served a motion to strike the appellants' pleadings. The appellants filed no material on the motion and did not appear. The motion judge, Di Tomaso J., then granted an order striking the appellants' statement of defence and noting the pleadings closed. The appellants filed a Notice of Appeal, but the appeal was later dismissed by the Deputy Registrar for the Court of Appeal for Ontario for delay because the appellant had not perfected the appeal. One year later, the appellants filed a notice of motion to set aside the Deputy Registrar's order dismissing the appeal and to extend the time for perfecting the appeal. By this time, the respondent had obtained judgment on its claim and attempted to examine the appellants in aid of execution.


(1) Are the appellants in the wrong court?

(2) Do they meet the test for setting aside the Deputy Registrar's decision?


Motion dismissed.


(1) Yes. Instead of applying under rules 37 or 19 of the Rules of Civil Procedure, the appellants sought to appeal without exhausting their remedies in the courts below, and accordingly, the Court of Appeal did not have jurisdiction to hear the appeal. The appellants did not attend the motion before Di Tomaso J. and therefore, the required procedure under rule 37.14 was to move to set aside the order before Di Tomaso J. The appellants did not do that, nor did they move under rule 19.08 to set aside the judgment that was ultimately obtained. The Court cited Halow Estate v Halow (2002), 59 OR (3d) 211 (CA) for the proposition that an appellant must exhaust its remedies in the court of first instance before an appeal will lie to the Court of Appeal. Since the appellants had not exhausted their remedies in the court below, the Court of Appeal did not have jurisdiction.

(2) No. Even if the Court had jurisdiction, the appellants did not meet the test to set aside the order of the Deputy Registrar. Per Paulsson v Cooper, 2010 ONCA 21, the following factors are considered when an appellant seeks to set aside an order and extend the time to perfect the appeal:

  • whether the moving party had an intention to appeal within the time for bringing an appeal;
  • the length of the delay and the explanation for the delay;
  • any prejudice to the respondent caused by the delay; and
  • the justice of the case.

The Court did not comment on the first factor but stated that that the delay of a year to perfect the appeal was long and largely unexplained, and an email exchange showed that the appellants were aware of the need to perfect. Next, the Court found that the delay had prejudiced the respondent which had been attempting to execute on the judgment. Finally, the Court considered the justice of the case and found that there was no merit to the appeal of the motion judge's order. The appellants' argument that the motion judge erred in granting the order because he ought to have provided the appellants with an opportunity to cure the default made no procedural or practical sense because it was not clear how this could have happened when the appellants did not attend the motion or request more time.


R v. Faucher, 2018 ONCA 815 (Appeal Book Endorsement)

[Simmons, Rouleau and Huscroft JJ.A.]


M. Dineen, as duty counsel

J. Faucher, acting in person

A. Hotke, for the respondent

Keywords: Criminal Law, Sentencing, Probation, Criminal Code s. 732.1(3)(h), R. v. Proulx, (2000) 140 C.C.C. (3d) 449 (S.C.C.)

R v. Sauve, 2018 ONCA 813 (Appeal Book Endorsement)

[Simmons, Rouleau and Huscroft JJ.A.]


L. P. Strezos, as duty counsel

C. E. Sauve, acting in person

L. Bolton, for the respondent

Keywords: Criminal Law, Second Degree Murder, R. v. W. (D.) [1991] 1 S.C.R. 742

R v. Prince, 2018 ONCA 829 (Appeal Book Endorsement)

[Hourigan, Miller and Trotter JJ.A.]


I.O. P, representing himself

C. Wadsworth, for the respondent

Keywords: Costs

Celik v. TD Canada Trust, 2018 ONCA 835

[Feldman, Pepall and Pardu JJ.A.]


M. C., in person

R. Forget, for the appellant

J. Riewald, for the respondent

Keywords: Costs

Hawley v. Granger, 2018 ONCA 834

[Hoy A.C.J.O., Sharpe and Fairburn JJ.A.]


R. H., acting in person

D.B. Williams and M.M Khami, for the respondent

Keywords: Limitation Periods, Limitations Act, 2002, S.O. 2002, c.24, s 4


R v. Holdsworth, 2018 ONCA 828

[Simmons, Rouleau and Huscroft JJ.A.]


M. Gourlay, as duty counsel

N. Holdsworth, in person, acting in person

J. Smith Joy, for the Crown

Keywords: Criminal Law, Possession of Prohibited Firearm with Ammunition, Discharging Firearm with Intent, Jury Instructions, Vetrovec Warning

R v. La, 2018 ONCA 830

[Feldman, Roberts and Trotter JJ.A.]


R. Pillay, for the appellant

S. Shaikh, for the respondent

Keywords: Criminal Law, Possession For Purpose of Trafficking, Exclusion of Evidence, Canadian Charter of Rights ss. 8, 9, 10(b) and 24(2), R. v. Proulx, 2016 ONCJ 352, R. v. Wu, 2017 ONSC 1003, R. v. Pino, 2016 ONCA 389, R. v. Kelly, 2017 ONCA 920, R. v. Bristol, 2011 ONCA 232, R. v. McGown, 2016 ONCA 575, R. v. Grant, 2009 SCC 32, R. v. G(P), 2017 ONCA 351, R. v. Rose, [1998] 3 S.C.R. 262, R. v. Suberu, 2009 SCC 33

R v. Ferdinand, 2018 ONCA 836

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


C. Webb, for the appellant

K. Bayley, for the respondent

Keywords: Criminal Law, Aggravated Assault, Discharging Firearm With Intent, R. v. McKay, [2005] 3 S.C.R. 725 Criminal Code, ss. 244(1), 244.2(1)(b), 265(1)(b)


Kalra (Re), 2018 ONCA 833

[A.C.J.O. and Watt J.A. and Then J. (ad hoc)]


J. Marshman, for the appellant

B. Walker-Renshaw, for the respondent Person in Charge of the Royal Ottawa Mental Health Centre

Keywords: Ontario Review Board, Not Criminally Responsible on Account of Mental Disorder, Criminal Harassment, Mischief, Fraud, Failure to Comply with Recognizance, Discharge, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, R. v. Owen, 2003 SCC 33, Carrick (Re), 2015 ONCA 866, Wall (Re), 2017 ONCA 713, Pellett (Re), 2017 ONCA 753, Health Care Consent Act, 1996, S.O 1996, c. 2, Schedule A., Criminal Code, ss. 672.55(1), 672.54(a), 672.5401, and 672.78(1)

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
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