Canada: Ontario Court Of Appeal Summaries (December 17 – 21, 2018)

Blaney's Appeals
Last Updated: January 4 2019
Article by John Polyzogopoulos

Following are our summaries of the civil decisions of the Court of Appeal for Ontario released this past week. The Court released a great number of decisions this week, some of them quite lengthy.

In Das v George Weston Limited, the Court of Appeal upheld a decision of Justice Perrell in which His Honour had dismissed as disclosing no reasonable cause of action a $2 billion class action against Loblaws in relation to the tragic 2013 collapse of the Rana Plaza building in Savar, Bangladesh. That collapse killed or seriously injured over 3,600 people, many of whom worked for Loblaws' suppliers of its Joe Fresh clothing line.

The Court held that the claims were governed by the laws of Bangladesh and that, as a result, most of the claims were statute-barred as a result of Bangladesh's Limitations Act, 1908. Furthermore, the Court held that it was "plain and obvious" that the claims that were not statute-barred would fail under Bangladeshi and English tort law. Loblaws, as merely a customer of the garment manufacturers who carried on business in Rana Plaza, simply did not owe a duty to the victims.

In Paulus v Fleury, the Court set aside the motion judge's decision which had rescinded a settlement agreement in an MVA case on the basis of alleged misrepresentations made by opposing counsel at the pretrial. The Court determined that the representations made were not fraudulent and commented on the duties of counsel in making submissions on behalf of their clients.

Other topics covered this week included family law (varying 27 year old final support orders, striking pleadings for failure to disclose financial information and the extent of permission to participate in the trial when one's answer is struck), adverse possession, specific performance of an option to repurchase land, forfeiture of a deposit paid under an agreement of purchase and sale of land, the interpretation of a continuous use clause in a commercial lease and striking pleadings. We also summarized another provincial offences matter this week, as it is relevant to anyone who will ever get a speeding ticket. The Crown is now obligated to provide, by way of disclosure, the user's manual to the radar gun. The Crown opposed having to provide individual disclosure to every defendant, citing its policy of making the manuals available for inspection a the Crown's office and circulating copies to the paralegals who regularly try speeding tickets in the Provincial Courts. The Court said those efforts were not enough to satisfy the Crown's disclosure obligation.

Table of Contents

Civil Decisions

Das v. George Weston Limited, 2018 ONCA 1053

Keywords: Torts, Negligence, Vicarious Liability, Breach of Fiduciary Duty, Civil Procedure, Class Proceedings, Striking Pleadings, No Reasonable Cause of Action, Expert Evidence, Foreign Law, Lex Loci Delicti, Standard of Review, Rules of Civil Procedure, Rule 21.01(1)(a), r. 21.01(1)(b), Lister v. McAnulty, [1944] S.C.R. 317, General Motors Acceptance Corporation of Canada, Limited v. Town and Country Chrysler Limited, Motion to Strike, Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654, R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, Reasonable Prospect of Success, Tolofson v. Jensen, [1994] 3 S.C.R. 1022

Canadian Civil Liberties Association v. Canada (Attorney General), 2018 ONCA 1038

Keywords: Constitutional Law, Administrative Law, Judicial Review, Criminal Law, Orders, Declarations of Constitutional Invalidity, Corrections and Conditional Release Act, S.C. 1992, c. 20, Canadian Charter of Rights and Freedoms, Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491

Gionet v. Pingue, 2018 ONCA 1040

Keywords: Family Law, Property, Presumption of Resulting Trust, Equalization of Net Family Property, Unequal Division of Property, Civil Procedure, Trials, Adjournments, Self-Represented Litigants, Family Law Act, R.S.O. 1990, c. F. 3, s. 5(6), Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, Best v. Best, [1999] 2 S.C.R. 868, Boaden Catering Limited v. Real Food for Real Kids Inc., 2017 ONCA 248, Dujardin v. Dujardin Estate, 2018 ONCA 597, Davids v. Davids (1999), 125 O.A.C. 375

DiMillo v. 209932 Ontario Inc., 2018 ONCA 1051

Keywords: Contracts, Real Estate, Agreements of Purchase and Sale of Land, Options, Specific Performance, Semelhago v. Paramedevan, [1996] 2 SCR 415, Kloepfer Wholesale Hardware v. Roy, [1952] 2 SCR 465 (S.C.C.), Pierce v. Empey, [1939] SCR 247 (S.C.C.), SBS Sealants Inc. v Robroy Industries Ltd., (2002) 59 OR (3d) 257 (C.A.), McCallum v Zivojinovic (1977), 16 OR (2d) 721 (C.A.), Kirby v. Cameron, [1961] OR 757 (C.A.), Erie Sand and Gravel Ltd. v Seres' Farms Ltd., 2009 ONCA 709, John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 OR (3d) 304 (C.A.)

Friday Harbour Village Inc. v. 2138746 Ontario Inc., 2018 ONCA 1047

Keywords: Real Property, Adverse Possession, Prescriptive Easements, Rights of Way, Trespass, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 13, Marshall v. Taylor, [1895] 1 Ch. 641 (Eng. C.A.), Raso v. Lonergan (1996), 13 O.T.C. 230 (Gen. Div.), Grygorcewicz v. Agar, 1998 CanLII 7141 (Ont. C.A.), Brad-Jay Investments Ltd. v. Village Developments Ltd. (2006), 218 O.A.C. 315 (C.A.)

Hatami v. 1237144 Ontario Inc., 2018 ONCA 1061

Keywords: Contracts, Real Estate, Agreements of Purchase and Sale of Land, Forfeiture of Deposit, Anticipatory Breach, Repudiation, Negligent Misrepresentation

McHale v. Lewis, 2018 ONCA 1048

Keywords: Torts, False Arrest, Conspiracy, Civil Procedure, Striking Pleadings, Frivolous, Vexatious or Abuse of Process, Leave to Amend, Merger, Limitation Periods, Discoverability, Canadian Charter of Rights and Freedoms, s 2, 15, Rules of Civil Procedure, RRO 1990, Reg 194, r 25.11, 26.01, Limitations Act, 2002, SO 2002, c 24, Sched B, Proceedings Against the Crown Act, RSO 1990, c P.27, Javitz v BMO Nesbitt Burns Inc (2011), 105 OR (3d) 279 (Ont Sup Ct J), Aristocrat Restaurants Ltd (cob Tony's East) v Ontario, [2003] OJ No 5331, Jevco Insurance Co v Pacific Assessment Centre Inc, 2015 ONSC 7751, Vancouver (City) v Ward, 2010 SCC 27, Hunt v Carey Canada Inc, [1990] 2 SCR 959, Tran v University of Western Ontario, 2016 ONCA 978, Metropolitan Toronto Condominium Corporation No 1352 v Newport Beach Development Inc, 2012 ONCA 850, Winmill v Woodstock (Police Services Board), 2017 ONCA 962, leave to appeal refused, [2018] SCCA No 39, Kolosov v Lowe's Companies Inc, 2016 ONCA 973

Haworth v. Haworth, 2018 ONCA 1055

Keywords: Family Law, Spousal Support, Orders, Variation, Material Change in Circumstances, Miglin v. Miglin, 2003 SCC 24, Pustai v. Pustai, 2014 ONCA 422, Divorce Act, R.S.C., 1985, c.3 (2nd Supp.), s. 17(7), Spousal Support Advisory Guidelines

Vista Sudbury Hotel Inc. (Rainbow Value Centre) v. The Oshawa Group Limited, 2018 ONCA 1068

Keywords: Contracts, Real Property, Commercial Leases, Interpretation, Continuous Use Clauses

Mullin v. Sherlock, 2018 ONCA 1063

Keywords: Family Law, Disclosure, Orders, Enforcement, Striking Pleadings, Conduct of Trial, Kovachis v. Kovachis, 2013 ONCA 663, Roberts v. Roberts, 2015 ONCA 450, Chiaramente v. Chiaramente, 2013 ONCA 641, Family Law Rules, O. Reg. 114/99, Rule 1(8)

Paulus v. Fleury, 2018 ONCA 1072

Keywords: Contracts, Settlements, Enforcement, Rescission, Fraud, Civil Procedure, Pretrials, Duties of Counsel, Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320

Short Civil Decisions

Colenbrander v. Savaria Corporation, 2018 ONCA 1057

Keywords: Appeal Book Endorsement, Jurisdiction, Good Faith

Greensides v. Kawartha Lakes (City), 2018 ONCA 1056

Keywords: Appeal Book Endorsement, Notice of Abandonment

Hart v. Balice, 2018 ONCA 1065

Keywords: Civil Procedure, Orders, Enforcement, Liens, Writs of Seizure and Sale

Koolatron v. Synergex Corporation, 2018 ONCA 1058

Keywords: Appeal Book Endorsement

Robson v. The Law Society of Upper Canada, 2018 ONCA 1076

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rule 25.06(8), Miazga v Kvello Estate, 2009 SCC 51, Conway v Law Society of Upper Canada, 2016 ONCA 72, Pastore v. Aviva Canada Inc., 2012 ONCA 887

Criminal Decisions

R. v. Coussons, 2018 ONCA 1043

Keywords: Criminal Law, Second Degree Murder, Sentencing

R. v. Eid, 2018 ONCA 1044

Keywords: Criminal Law, Appointing Counsel

R. v. Wiafe, 2018 ONCA 1045

Keywords: Criminal Law, Fraud Over $5,000

R. v. D.E.S., 2018 ONCA 1046

Keywords: Criminal Law, Assault, Assault with a Weapon, Sexual Interference, Sexual Assault, Uttering a Threat, Failing to Comply with Recognisance, Failure to Comply with Probation, Evidence, Credibility, Reliability, Children's Testimony, Sentencing, R. v. W. (D.), [1991] 1 S.C.R. 742, R. v. B. (G.), [1990] 2 S.C.R. 57, R. v. Wadforth, 2009 ONCA 716, Gladue Principles, R. v. R. S., 2015 ONCA 291

R. v. J.E., 2018 ONCA 1049

Keywords: Criminal Law, Assault, Sexual Assault

R. v. Ranglin, 2018 ONCA 1050

Keywords: Criminal Law, First Degree Murder, Firearms, Evidence, KGB Statements, R. v. B. (K.G.), [1993] 1 S.C.R. 740, R. v. Sinobert, 2015 ONCA 691, Vetrovec Warnings, Unsavory Witnesses, Credibility, R. v. A.W.B., 2015 ONCA 185, Judicial Discretion, R. v. Potvin, [1989] 1 S.C.R. 525, R. v. Khela, 2009 SCC 4, Confirmatory Evidence, Third Party Suspect Witnesses, R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), aff'd [1977] 2 S.C.R. 824, Air of Reality, R. v. Fontaine, 2004 SCC 27

R. v. D.M., 2018 ONCA 1060

Keywords: Criminal Law, Evidence, Admissibility, Video-Recorded Statement, Credibility, Criminal Code, s. 715.1

R. v. France, 2018 ONCA 1052

Keywords: Criminal Law, Manslaughter, Gardiner Hearing

R. v. Brown, 2018 ONCA 1064

Keywords: Criminal Law, Possession of Narcotics, Possession for the Purpose of Trafficking, Evidence, Burden of Proof, R. v. Lifchus, [1997] 3 S.C.R. 320, Watt's Manual of Criminal Jury Instructions, Second Edition

R. v. McKenna, 2018 ONCA 1054

Keywords: Criminal Law, Sexual Assault, Evidence, Admissibility, Voir Dire, Jury Instructions, Criminal Code, s. 145(2), R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, United States of America v. Anderson, 2007 ONCA 84, R. v. White, 2011 SCC 13, R. v. White, [1998] 2 S.C.R. 72, R. v. Hall, 2010 ONCA 724

R. v. Stubbs, 2018 ONCA 1068

Keywords: Criminal Law, Second Degree Murder, Defences, Provocation, Sentencing, R. v. Luciano, 2011 ONCA 89

R. v. Upjohn, 2018 ONCA 1059

Keywords: Criminal Law, Breach of Trust, Public Officials, Criminal Code, s. 122, R. v. Boulanger, 2006 SCC 32

R. v. Lee, 2018 ONCA 1067

Keywords: Criminal Law, Drug Trafficking, Evidence, Unreasonable Search and Seizure, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Canadian Charter of Rights and Freedoms, s. 8, R. v. McKanick, 2015 ONSC 2128, R. v. Golden, 2001 SCC 83

R. v. Wheeler, 2018 ONCA 1069

Keywords: Criminal Law, Sexual Interference, Criminal Code, s. 177.2(2)

R. v. Beaudoin, 2018 ONCA 1071

Keywords: Appeal Book Endorsement, Criminal Law, Aggravated Sexual Assault, Sentencing, Mitigating Factors

R. v. J.R., 2018 ONCA 1070

Keywords: Appeal Book Endorsement, Criminal Law, Criminal Code, s. 743.2.1

R. v. Vining, 2018 ONCA 1078

Keywords: Criminal Law, Theft, Dangerous Driving, Failing to Stop for Police, Mischief, Evidence, Vetrovec Witness, R .v. Wadworth, 2009 ONCA 716

Provincial Offences

York (Regional Municipality) v. McGuigan, 2018 ONCA 1062

Keywords: Provincial Offences, Highway Offences, Speeding, Crown Disclosure, Third Party Disclosure, Relevance, Administrative Law, Certiorari, Provincial Offences Act, RSO 1990, c P.33, s 2, 46(2), 135(1), 140(1), 141(2.1), 141(3), 141(4), Highway Traffic Act, RSO 1990, c H.8, s 128, Criminal Code, RSC 1985, c C-46, s 258(1)(c), 784(1), Canadian Charter of Rights and Freedoms, s 7, 11(d), R v Jackson, 2015 ONCA 832, leave to appeal to SCC refused, [2016] SCCA No 38, R v Arcand (2004), 73 OR (3d) 758 (CA), R v Johnson (1991), 3 OR (3d) 49 (CA), R v 1353837 Ontario Inc (2005), 74 OR (3d) 401 (CA), R v Awashish, 2018 SCC 45, York (Municipality) v Irwin, 2017 ONCA 906, R v Gubbins, 2018 SCC 44, R v Stinchcombe, [1991] 1 SCR 326, R v McNeil, 2009 SCC 3, R v Quesnelle, 2014 SCC 46, R v J-LJ, 2000 SCC 51, R v Blencowe (1997) 35 OR (3d) 536 (Gen Div), R v Pan, 2014 ONSC 4645, R v Dunn (2009), 251 CCC (3d) 384 (Ont Sup Ct J), Durham (Regional Municipality) v Driscoll-Rogers, 2008 ONCJ 581, R v Bennett, 2017 ONCA 780, R v Fiddler, 2012 ONSC 2539, R v Kassam, 2016 ONSC 6961

CIVIL DECISIONS

Das v. George Weston Limited, 2018 ONCA 1053

[Doherty and Feldman JJ.A. and Gray J. (ad hoc)]

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