Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 23, 2022.
There were only two substantive civil decisions released this week, together with several short endorsements. In 1386444 Ontario Inc v. 2331738 Ontario Ltd (Century Cabinet Doors Inc), the Court found that the application judge did not err in finding that a nuisance existed and upheld the permanent injunction as the appellants failed to abate the nuisance despite being given several opportunities to do so. Dent X Canada v. Houde is another anti-SLAPP decision.
Table of Contents
Civil Decisions
Dent-X Canada v. Houde, 2022 ONCA 414
Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C 43, s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Grant v. Torstar Corp., 2009 SCC 61, Das v. George Weston Limited, 2017 ONSC 5583, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Veneruzzo v. Storey, 2018 ONCA 688
1386444 Ontario Inc v. 2331738 Ontario Ltd (Century Cabinet Doors Inc), 2022 ONCA 416
Keywords: Torts, Nuisance, Real Property, Condominiums, Remedies, Injunctions, Condominium Act, 1998, SO 1998, c 19, ss. 134 & 135, Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13, Sutherland v Canada (Attorney General), 2002 BCCA 416
Short Civil Decisions
Ammar v. Perdelwitz, 2022 ONCA 425
Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Appeals, Extension of Time, Rigillo v. Rigillo, 2019 ONCA 647
Kozik v. Partridge, 2022 ONCA 424
Keywords: Real Property, Rights of way, Civil Procedure, Orders, Varying or Setting Aside, Rules of Civil Procedure, Rule 59.06
Pullano v. Hinder, 2022 ONCA 418
Keywords: Torts, Battery, Defamation, Damages, Nominal Damages
Teefy Developments (Bathurst Glen) Limited v. Sun, 2022 ONCA 422
Keywords: Civil Procedure, Appeals, Extensions of Time, Panel Review, Fresh Evidence, Courts of Justice Act, RSO 1990, c C43, s 7(5), Asghar v Toronto (Police Services Board), 2021 ONCA 338, Enbridge Gas Distribution Inc. v Froese, 2013 ONCA 131
Wilson v. Fatahi-Ghandehari, 2022 ONCA 421
Keywords: Family Law, Marriage Contracts, Civil Procedure, Contempt, Abuse of Process
CIVIL DECISIONS
Dent-X Canada v. Houde, 2022 ONCA 414
[Benotto, Zarnett and Copeland JJ. A.]
Counsel:
F. Sauvageau for the appellants
S. Fischoff for the respondent
Keywords: Torts, Defamation, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C 43, s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Grant v. Torstar Corp., 2009 SCC 61, Das v. George Weston Limited, 2017 ONSC 5583, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Veneruzzo v. Storey, 2018 ONCA 688
facts:
The appellants appealed the order of the motion judge dismissing their motion to dismiss the respondent's defamation action under s. 137.1 of the Courts of Justice Act ("CJA"), Ontario's "anti-SLAPP" provision.
The statement at issue was a single Facebook post created by one of the individual appellants, who was unhappy with the delay in delivery of face masks from the respondent's company.
The motion judge accepted that the Facebook post constituted expression. However, reading the statement as a whole, he was not satisfied that it related to a matter of public interest.
Lastly, the motion judge awarded costs of the motion to the respondents.
issues:
(1) Did the motion judge err in finding that the statement did not relate to a matter of public interest?
(2) Did the motion judge err in awarding costs of the motion to the respondent?
holding:
Appeal dismissed.
reasoning:
(1) No.
The motion judge did not err in the finding that the statement did not relate to a matter of public interest. The motion judge correctly instructed himself on the analysis from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 at paras 20, 26-31 and Grant v. Torstar Corp, 2009 SCC 61, at paras 99-109.
The appellants submitted that the motion judge committed two errors in finding that the statement at issue did not relate to a matter of public interest. First, the appellants submitted that the motion judge "completely ignored" that the statement was, in part at least, for the purpose of commencing a potential class action. This argument was rejected, as motion judge was clearly alive to the fact that the title and first sentence of the statement at issue referred to a potential class action. The motion judge correctly considered the statement as a whole.
Second, the appellants submitted that the motion judge erred by considering the issue of whether the statement related to a matter of public interest from the subjective perspective of the motives and manner of expression of the appellants, rather than based on the subject-matter of the statement, as is required by Pointes and Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730. The Court disagreed with this argument, since motion judge considered the statement as a whole and correctly considered whether it related to a matter about which the public has genuine interest or concern, or affecting the welfare of citizens. He analyzed the subject-matter of the statement, and made factual findings that were based on an analysis of the whole statement.
Overall, the motion judge did not err in finding that the expression did not pass the threshold test in s 137.1(3) of the CJA of relating to a matter of public interest.
(2) No.
The motion judge did not err in awarding costs of the motion to the respondent. The motion judge instructed himself correctly on the applicable law in relation to the "no costs" presumption in s 137.1(8), based on the decision of the Court in Veneruzzo v. Storey, 2018 ONCA 688, at para. 39.
1386444 Ontario Inc. v. 2331738 Ontario Ltd. (Century Cabinet Doors Inc.), 2022 ONCA 416
[Strathy C.J.O., Sossin and Favreau JJ.A.]
Counsel:
A. Duggal and M. Mehta, for the appellants
J.S.G. Macdonald and M. Rupoli, for the respondents
Keywords: Torts, Nuisance, Real Property, Condominiums, Remedies, Injunctions, Condominium Act, 1998, SO 1998, c 19, ss. 134 & 135, Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13, Sutherland v Canada (Attorney General), 2002 BCCA 416
facts:
The appellants, operators of a cabinet-making business, sought to set aside a permanent injunction enjoining them from causing a nuisance to an adjoining business, the respondents' law offices. The nuisance was caused by the noise generated by the appellants' industrial saws and machinery. The parties occupy adjacent units in a mixed-use condominium complex which consists of 40 commercial units. The respondents brought an application pursuant to ss. 134 and 135 of the Condominium Act, 1998 for an order enforcing compliance with the corporation's rules and enjoining the appellants from causing a nuisance (described by witnesses as "loud, vibrating and shrieking noises") in the operations of their business.
The application judge found that the noise emitted from the appellants' premises was "a significant and unreasonable nuisance that has and continues to interfere with the respondent's use and enjoyment of his condominium unit" and that the appellants had breached s. 135 of the Condominium Act, 1998.
The application judge found that the appellants had failed to take the opportunity to abate the nuisance by reducing the noise to acceptable levels and granted a permanent injunction restraining the operation of the machinery between 9:00 a.m. and 5:00 p.m. on weekdays. The application judge left it open to the appellants to move to vary the order if they could demonstrate that their operations brought the noise level within acceptable limits.
issues:
(1) Did the application judge err in finding that a nuisance existed?
(2) Did the application judge err in law by failing to apply the legal test for nuisance?
(3) Did the respondents fail to reduce the effects of the nuisance?
(4) Can the appellants rely on the defence of statutory authority?
holding:
Appeal dismissed.
reasoning:
(1) No.
There was ample evidence to support the existence of a nuisance. Both the respondent Mr. B, who was the principal of the numbered company, and his former tenant deposed as to the loud sawing and "shrieking" noises that emanated from the appellants' premises and made it impossible to meet with clients, have conversations or conduct their businesses. The appellants' own expert agreed with the respondents' experts that the noise levels were above those recommended for an office space and required remedial measures. The application judge's reasons revealed that she fairly assessed this evidence.
(2) No.
The application judge expressly cited the factors in Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC 13 at para 53 to determine whether the interference was unreasonable in all circumstances. As was noted in Antrim itself, at para. 54, a court is not required to specifically enumerate any or all of these factors as long as there is an appropriate weighing of the gravity of the harm against the utility of the defendant's conduct. The application judge was plainly aware that the relevant municipal zoning permitted both commercial and industrial uses and that the condominium complex had both types of uses. According to the evidence, the noise made it impossible for the respondents to conduct business. This placed the harm at the very high end of the severity scale. There was no evidence that the plaintiff was unusually sensitive, and the defendant's conduct had no inherent utility other than as a commercial or industrial operation.
(3) Yes.
The Court rejected the appellants' submission that the respondents should have taken measures to reduce the impact of the noise in their premises - for example, by adding soundproofing to the walls and ceilings. The obligation to abate a nuisance falls on the party that created the nuisance - not on the victim of the nuisance. The application judge did not impose a mandatory injunction to remedy the issue or place an onus on the appellants, as they alleged. It was open to the appellants to abate the nuisance, something they failed to do despite being given several opportunities.
(4) No.
The appellants contended that because the condominium was in an area zoned for both commercial and industrial uses, its use for industrial or manufacturing purposes was unconstrained and was beyond the reach of the law of nuisance.
The Court found that the appellants' reliance on statutory authority was misplaced - the creation of the nuisance was not the "inevitable result" of the permitted operation of an industrial business. The zoning by-law, which permitted both industrial and commercial uses, did not expressly or impliedly authorize the creation of a nuisance. While the by-law permitted industrial uses, it did not authorize any or every industrial user to commit a nuisance in the operation of the business it was permitted to operate.
SHORT CIVIL DECISIONS
Ammar v. Perdelwitz, 2022 ONCA 425
[Roberts, Zarnett and Coroza JJ.A.]
Counsel:
M.L. P. (S.), acting in person
S. Harris, for the responding party
Keywords: Family Law, Child Support, Spousal Support, Civil Procedure, Appeals, Extension of Time, Rigillo v. Rigillo, 2019 ONCA 647
Kozik v. Partridge, 2022 ONCA 424
[Doherty, Huscroft and George JJ.A.]
Counsel:
J.P.M. Collings, for the appellants
M.L. Grenier, for the respondent
Keywords: Real Property, Rights of way, Civil Procedure, Orders, Varying or Setting Aside, Rules of Civil Procedure, Rule 59.06
Pullano v. Hinder, 2022 ONCA 418
[Benotto, Zarnett and Copeland JJ.A.]
Counsel:
W. Reid, for the appellant
D. Berlach and L. Clark for the respondents
Keywords: Torts, Battery, Defamation, Damages, Nominal Damages
Teefy Developments (Bathurst Glen) Limited v. Sun, 2022 ONCA 422
[van Rensburg, Harvison Young and Copeland JJ.A.]
Counsel:
P. Robson, for the appellant
I.K. Latimer and A. Moten, for the respondent
Keywords: Civil Procedure, Appeals, Extensions of Time, Panel Review, Fresh Evidence, Courts of Justice Act, RSO 1990, c C43, s 7(5), Asghar v Toronto (Police Services Board), 2021 ONCA 338, Enbridge Gas Distribution Inc. v Froese, 2013 ONCA 131
Wilson v. Fatahi-Ghandehari, 2022 ONCA 421
[Benotto, Zarnett and Copeland JJ.A.]
Counsel:
P. Robson, for the appellant
J. Mackenzie, J. Mackenzie and R.G. Scocco, for the respondent
Keywords: Family Law, Marriage Contracts, Civil Procedure, Contempt, Abuse of Process
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