Court Of Appeal Summaries (June 6, 2022 – June 10, 2022) - Civil Law

Good evening.

Following are this week's summaries of the Court of Appeal for Ontario for the week of June 6, 2022.

In Antchipalovskaia v Guestlogix Inc, the Court determined that the motion judge erred in treating the respondent's employment with the appellant from 2011 to 2019 as one continuous period of employment for the purpose of determining her entitlement to common law notice of termination of her employment. Her employment had been terminated following her employer seeking protection under the CCAA, and a release of her claims was ordered by the court in that proceeding. She was then re-hired, but her service prior to the CCAA proceeding should not have counted towards her common law notice entitlement.

The Court also allowed the appeal in another wrongful dismissal case, Rahman v. Cannon Design Architecture Inc. In that case, the motion judge was found to have erred in applying the termination provisions of the employment agreements, given that they violated the Employment Standards Act. It was also an error not to find that a group of companies were the plaintiff's common employer, and that therefore the corporations were jointly liable to the plaintiff.

Other topics covered this week included judicial review in the statutory accident benefits context, limitation periods and boomerang summary judgment in the solicitor's negligence context, rescission in the franchise context, “anti-SLAPP”, expediting appeals in the forum non conveniens context, and extension of time to perfect an appeal.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Paul v Madawaska Valley (Township), 2022 ONCA 444

Keywords: Torts, Defamation, Misfeasance of Public Office, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, section 137.1, 1704604 Ontario Ltd. v Pointes Protection Association, 2020 SCC 22, 449 D.L.R. (4^th) 1, Bent v Platnick, 2020 SCC 23, Gutowski v Clayton, 2014 ONCA 921

Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446

Keywords: Contracts, Insurance, Statutory Accident Benefits, Administrative Law, Ontario License Appeal Tribunal, Appeals, Judicial Review, Insurance Act, RSO 1990, c. I.8, 280(3), Licence Appeal Tribunal Act, 1999, S.O. 1999, c 12, Sched G, Judicial Review Procedure Act, RSO 1990, c J 1, 2(1), Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O Reg 403/96, Smith v Co-operators General Insurance Co., 2002 SCC 30, Strickland v. Canada (Attorney General), 2015 SCC 37, Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 SCR 3, Shearer v Oz, 2021 ONSC 7844

Chuang v. Fogler Rubinoff LLP, 2022 ONCA 440

Keywords: Contracts, Solicitor and Client, Torts, Solicitor's Negligence, Civil Procedure, Limitations Periods, “Appropriate Means”, Summary Judgment, Boomerang Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(iv), Chuang v. Toyota Canada Inc., 2015 ONSC 885, Chuang v. Toyota Canada Inc., 2016 ONCA 584, Chuang v. Toyota Canada Inc., 2016 ONCA 852, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada, 2022 ONCA 448

Keywords: Contracts, Insurance, Coverage, Civil Procedure, Jurisdiction, Forum Non Conveniens, Comity, Appeals, Expediting, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 12.1.3, James Bay Resources Ltd. v. Mak Mera Nigeria Ltd., 2015 ONCA 781, Teck Cominco Metals Ltd. v Lloyd's Underwriters, 2009 SCC 11, McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng'g Co., 263 A.2d 281 (Del. 1970), Vale Canada Limited v Royal & Sun Alliance Insurance Company of Canada, 2021 ONSC 6377

Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451

Keywords: Contracts, Employment, Wrongful Dismissal, Termination Without Cause, Reasonable Notice, Statutory Termination Pay, Enforceability, Illegality, Corporations, Common Employer Doctrine, Employment Standards Act, 2000, S.O. 2000, c. 41, Termination and Severance of Employment, O. Reg. 288/01 s. 2(1), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, Plester v. Polyone Canada Inc., 2011 ONSC 6068, aff'd 2013 ONCA 47, Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538, Waksdale v. Swegon North America Inc., 2020 ONCA 391, leave to appeal refused, [2020] S.C.C.A. No. 292, Rossman v. Canadian Solar Inc., 2019 ONCA 992, O'Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, leave to appeal refused, [2021] S.C.C.A. No. 316

Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455

Keywords: Civil Procedure, Appeals, Perfection, Extensions of Time, Orders, Injunctions, Enforcement, Contempt, Carey v. Laiken, 2015 SCC 17, Town of Caledon v. Darzi Holdings Ltd., 2021 ONSC 985, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 17, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. v. Joanisse (1995), 102 C.C.C. (3d) 35, R. v. G.D.B., 2000 SCC 22, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, Dickie v. Dickie, 2007 SCC 8

Antchipalovskaia v Guestlogix Inc., 2022 ONCA 454

Keywords: Contracts, Employment, Wrongful Dismissal, Termination Without Cause, Reasonable Notice, Damages, Companies' Creditors Arrangement Act, RSC, 1985, c C-36, Employment Standards Act, 2000, SO 2000, c 41, s. 9 (1), Courts of Justice Act, RSO 1990, c C 43, s. 134(1)(a), Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HC), Manthadi v ASCO Manufacturing, 2020 ONCA 485, Addison v M Loeb Ltd (1986), 25 DLR (4th) 151 (Ont CA), Carpenter v Brains II Canada Inc, 2015 ONSC 6224, aff'd 2016 ONSC 3614 (Div Ct), Minott v O'Shanter Development Co (1999), 42 OR (3d) 321 (CA), McNevan v AmeriCredit Corp, 2008 ONCA 846, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158

2483038 Ontario Inc. v. 2082100 Ontario Inc. , 2022 ONCA 453

Keywords: Contracts, Franchise Agreements, Franchise Law, Remedies, Rescission, Informed Investment Test, Franchisors Associates, Personal Liability, Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3, ss. 1(1), 6(2), 6(6), Raibex Canada Ltd. v. ASWR Franchising Corp., 2018 ONCA 62, 6792341 Canada Inc. v. Dollar It Limited, 2009 ONCA 385, Sovereignty Investment Holdings, Inc. v. 9127-6907 Quebec Inc. (2008), 303 D.L.R. 4th) 515 (Ont. S.C.); Hi Hotel Limited Partnership v. Holiday Hospitality Franchising Inc., 2008 ABCA 276, 2619506 Ontario Inc. v. 2082100 Ontario Inc., 2021 ONCA 702, 4287975 Canada Inc. v. Imvescor Restaurants Inc., 2009 ONCA 308, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016)

Short Civil Decisions

Fisher v Soroka, 2022 ONCA 442

Keywords: Contracts, Real Property, Mortgages, Remedies, Foreclosure, Relief from Forfeiture, Civil Procedure, Default Judgments, Setting Aside, Winters v Hunking, 2017 ONCA 909, Intact Insurance Co. v Kisel, 2015 ONCA 205, Mountain View Farms Ltd. v McQueen, 2014 ONCA 194

Toronto-Dominion Bank v Overland R.N.C. Inc., 2022 ONCA 447

Keywords: Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, Dickinson v Royal Bank of Canada, [1976] 2 S.C.R. 834

CIVIL DECISIONS

Paul v Madawaska Valley (Township), 2022 ONCA 444

[Tulloch, Lauwers and Paciocco JJ.A.]

COUNSEL:

J.P.R. Cassan and T.J. Harmar, for the appellants

J. Safayeni and K. Bernofsky, for the respondents

FACTS:

The appellants brought an unsuccessful “anti-SLAPP” motion for an order dismissing the respondent's action under section 137.1 of the Courts of Justice Act.

The individual respondents were previously involved in litigation with the Township, including a Human Rights Tribunal of Ontario (HRTO) claim. After the HRTO settlement, one of the respondents, Mr. P, wrote to the Township advising them to bring an action against its previous solicitors to recover the costs spent defending rather than mediating the HRTO action. The Township's counsel wrote an opinion letter to the Township advising it against bringing an action, noting that he was unable to verify that Mr. P was ever called to the Ontario Bar or that he had practiced law in Canada. The opinion letter was discussed at a Town Council meeting, where Council waived solicitor-client privilege.

Council passed a resolution, confirming a by-law accepting counsel's recommendations. Mr. P forwarded proof of his call to the Ontario Bar and demanded an apology and that the Township donate to a not-for-profit organization. The respondents then sued the appellants for defamation and misfeasance in public office. The appellants argued that the action arose from expressions relating to public interest and put several defences in play in their motion materials. The motion judge dismissed the appellants' motion to dismiss the respondents' action. The motion judge found that the claim was in relation to statements that were “expressions” within the meaning of section 137.1(2), and that the expressions related to matters of public interest because the public has a genuine stake in knowing about matters pertaining to Town Council.

The motion judge further found that the respondents had met their burden under section 137.1(4)(a)(i) and (ii), both of which are required in order for an anti-SLAPP motion to be dismissed. The respondents were able to show that the claims had a prospect of success and that there were grounds upon which each of the defences could realistically be rejected, based on the law and on the record.

ISSUES:

(1) Did the motion judge err in her understanding and application of weighing different interests?

(2) Did the motion judge err by stepping into the breach on behalf of the self-represented respondents and by doing the analysis of the defences available to the appellants on which the respondents made no submissions?

(3) Did the motion judge err in her analysis of absolute privilege and its availability to the appellants?

(4) Did the motion judge err procedurally?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

The Court did not find that the motion judge erred in her application of the weighing exercise. The Court concluded that the motion judge fully recognized that the “final weighing exercise” was “the fundamental crux of the analysis”. The Court found no reviewable error in the motion judge's conclusion that allowing this action to proceed to a determination on the merits gives appropriate weight to the public interest in seeing harm arising from defamatory statements remedied, while also addressing the public interest in protecting the type of expression in which the appellants engaged.

(2) No.

The Court did not accept the argument put forth by the appellants that the motion judge effectively reversed the onus on the respondents under section 137.1(4) of the Courts of Justice Act. The Court held that the defences to a defamation action are obvious and were in fact raised by the appellants themselves in argument. The motion judge was obliged to address the arguments the appellants adduced concerning the provisional defences, based on the evidence and record before her, and did not err in her analysis of them.

(3) No.

The motion judge did not err in declining to address more fully the issue of absolute privilege as a defence. The Court agreed with the motion judge that this kind of motion was not the place for a determination of this issue, which could play a role in the appellants' defence of the defamation action.

(4) No.

The appellants were obliged to bring a motion at the beginning of the hearing to strike out portions of the materials filed by the respondents. The appellants were largely successful but maintained that the exercise disadvantaged them because they could not know until the decision was rendered what material the motion judge had accepted for the purpose of the argument on the merits. The Court agreed that it would have been better had the procedural motion proceeded well before the argument on its merits, but accorded this argument no weight because the appellants pointed to no specific material and to no specific prejudice that this procedural issue might have caused them.

Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446

[Lauwers, Nordheimer and Zarnett JJ.A.]

COUNSEL:

S. Dewart, I. McKellar, and R. Ward for the appellant

D. Greenside and R. Groskopf for the respondent TD Insurance Meloche Monnex

V. Crystal and T. Guy for the respondent License Appeal Tribunal

FACTS:

UY appealed the decision of the Divisional Court which dismissed her application for judicial review of a decision of the Licence Appeal Tribunal (the “Tribunal”).

UY was injured in a motor vehicle accident on February 7, 2010. At the time, she was insured under a motor vehicle liability policy of insurance issued by the respondent, TD Insurance. UY submitted an Application for Accident Benefits, as well as an Employer's Confirmation Form, and elected to claim Income Replacement Benefits (“IRBs”). She also claimed housekeeping and home maintenance benefits pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O Reg 403/96 (“the SABS”). TD Insurance initially paid benefits, but on January 7, 2011, it wrote to the appellant and stated that payment of IRBs, housekeeping, and home maintenance benefits had been stopped effective January 4, 2011, because it had not received a completed disability certificate within the time requested.

In January, she attended two insurer's medical examinations, one with a psychologist and one with a physiatrist, for the purpose of determining her entitlement to IRBs, housekeeping, and home maintenance benefits. TD Insurance wrote to the appellant and denied her claim for housekeeping and home maintenance benefits based on the results of the examinations but allowed her claim for IRBs with continued monitoring. On September 19, 2011, TD Insurance wrote the appellant to deny her claim for IRBs and to advise that payment of her IRBs would be stopped effective September 28, 2011.

The appellant applied for mediation at the Financial Services Commission of Ontario (“FSCO”) on September 13, 2012 to dispute the denial of her IRBs and housekeeping and home maintenance benefits.

On April 29, 2019, the Tribunal adjudicator found that the appellant's claim was statute-barred because it had been commenced more than two years after the denial of benefits by TD Insurance. The appellant requested a reconsideration of that decision. On April 23, 2020, the adjudicator confirmed his decision.

ISSUES:

(1) Did the Divisional Court err in limiting judicial review, in cases where there has been a statutory appeal from a Tribunal decision about SABS, to “exceptional circumstances”?

(2) Was the Tribunal's reconsideration decision reasonable?

HOLDING:

Appeal dismissed.

REASONING:

(1) Yes.

The Court agreed that judicial review should be limited to rare cases where adequate alternative remedies are insufficient to address the particular factual circumstances of a given case. However, the Court disagreed with the use of the term “exceptional circumstances”.

While the Court agreed with the point that the Divisional Court was attempting to make in its reasons, the use of the language “exceptional circumstances” was unfortunate. This wording gives rise to confusion regarding access to judicial review as a remedy in cases where there is a statutory appeal.

The Divisional Court was correct in concluding that the existence of an adequate alternative remedy was a valid reason not to exercise its discretion to hear and determine a judicial review application. In reaching that conclusion, the Divisional Court properly considered the various factors from Strickland.

The legislation regarding the resolution of disputes over SABS intended to greatly restrict resort to the courts for the determination of those disputes.

Having said that, the Court recognized that the appellant still had the remedy of an application for judicial review available to her. That availability is clear from a number of sources such as s 280(3) of the Insurance Act. The Judicial Review Procedure Act, RSO. 1990, c J 1, provides, in s 2(1), that a “court may, despite any right of appeal, by order grant any relief” by way of judicial review. Further, the case law also makes it clear that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at para 24. However, this did not change the analysis nor did it change the fact that judicial review is a discretionary remedy.

When the Divisional Court said that it would only exercise its discretion to hear and determine an application for judicial review in exceptional circumstances, it was attempting to communicate that it would only be in rare cases that the remedy of judicial review would be exercised, given the legislated scheme for the resolution of disputes over SABS. The decision of the Divisional Court recognizes the legislative intent to limit access to the courts regarding these disputes. This analysis is consistent with the principles regarding the centrality of legislative intent expressed in Vavilov.

The Court agreed with the Divisional Court's approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, were insufficient to address the particular factual circumstances of a given case.
Removing the requirement for exceptional circumstances does not change the rationale or result of the Divisional Court's decision. It remains true that it will only be a rare case where the remedy of judicial review will be properly resorted to, given the alternative remedies that are available to an unsuccessful party.

(2) Yes.

The adjudicator found that, when the IRBs were finally denied by the letter of September 19, 2011, the appellant was fully informed of the dispute resolution process. Consequently, he concluded that there was no deficiency that undermined the denial of the IRBs through the September 19, 2011 letter. The fact that the appellant had not launched her application to the Tribunal until March 16, 2018, meant that it was outside of the limitation period. The appellant failed to demonstrate that there was anything unreasonable in the conclusion that the adjudicator reached in his reconsideration decision.

Chuang v. Fogler Rubinoff LLP, 2022 ONCA 440

[Gillese, Trotter and Harvison Young JJ.A.]

COUNSEL:

P. Wardle and E. Rankin, for the appellants Fred Tayar & Associates Professional Corporation

M. Kestenberg, for the appellants, Fogler Rubinoff LLP

T. Danson and M. Delavar, for the respondents

Keywords: Contracts, Solicitor and Client, Torts, Solicitor's Negligence, Civil Procedure, Limitations Periods, “Appropriate Means”, Summary Judgment, Boomerang Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 5(1)(a)(iv), Chuang v. Toyota Canada Inc., 2015 ONSC 885, Chuang v. Toyota Canada Inc., 2016 ONCA 584, Chuang v. Toyota Canada Inc., 2016 ONCA 852, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851

FACTS:

The respondent, Dr. C and companies, entered into a Letter of Commitment (“LOC”) with Toyota Canada Inc. (“Toyota”) to build and operate a Lexus dealership in Toronto. Toyota terminated the LOC after the respondents failed to meet certain deadlines set out in the agreement. The respondents commenced an action against Toyota, alleging that the termination was unlawful. They were unsuccessful. An appeal to the Court was dismissed (Chuang v. Toyota Canada Inc., 2016 ONCA 584), as was a motion to reopen the appeal (Chuang v. Toyota Canada Inc., 2016 ONCA 852). The Supreme Court of Canada refused leave to appeal ([2016] S.C.C.A. No. 568).

Following the dismissal of the leave application, the respondents commenced an action in negligence against the appellants for failing to provide competent advice concerning the enforceability of the exclusion of liability clause. They claimed a loss of approximately $28 million in damages and $3 million in legal fees.

There are two sets of appellants. Fogler Rubinoff LLP, N. Perfetto, I. Katchin, and D. Levangie (“the Fogler Rubinoff appellants”) represented the respondents until mid-trial, when they were permitted to withdraw. The trial was adjourned until new counsel came on board.

The second set of appellants, Fred Tayar and Associates Professional Corporation, F. Tayar, and C. Linthwaite (“the Tayar appellants”), represented the respondents for the remainder of the trial. The Tayar appellants assumed the same litigation strategy at trial as the Fogler Rubinoff appellants. Both sets of appellants attempted to circumvent the exclusion of liability clause in the LOC, but only on a single and narrow basis.

The appellants moved for summary judgment. They claimed that the respondents' claims were discoverable before the Supreme Court of Canada refused leave to appeal on March 30, 2017, within the two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. The respondents advanced the position that their claims were not discoverable until the Supreme Court of Canada refused leave to appeal; this is when they sought legal advice about the professional competence of their previous counsel.

The motion judge dismissed the summary judgment motion, held that the limitations defence be dismissed, and directed that the case proceed to trial on the merits.

ISSUES:

(1) Did the motion judge err in dismissing the motion to dismiss the action as statute-barred and dismissing the limitation period defence?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.
The motion judge held that the claim was not discoverable until the Supreme Court of Canada refused leave to appeal. In the alternative, the motion judge held that, if the claim was discoverable earlier, and outside the two-year limitation period, commencing an action was not “an appropriate means to seek to remedy it” within the meaning of s. 5(1)(a)(iv) of the Limitations Act, 2002. Even though the respondents did not bring a cross-motion for a determination that their claim was timely, the motion judge found it appropriate to grant summary judgment in favour of the respondents and dismissed the limitations defence.

The motion judge found that the respondents did not discover their claim until after the Supreme Court of Canada refused leave to appeal. The motion judge rejected the appellants' position that there were earlier points in time when the respondents would have been aware of the material facts necessary to ground their claim.

The Court of Appeal found no error in the motion judge's conclusion that the claim was not discoverable until after the refusal of leave to appeal on March 30, 2017, a procedural step that was recommended to them by the appellants. It was at that critical moment, when their case was irretrievably lost, that the respondents sought an opinion about the appellants' professional competence. Having commenced this action on March 28, 2019, the respondents' claim is not statute-barred.

Vale Canada Limited v. Royal & Sun Alliance Insurance Company of Canada,, 2022 ONCA 448

[Lauwers J.A. (Motion Judge)]

COUNSEL:

A. Lewis, for the appellant

D. Smith, for the respondents

FACTS:

The moving parties, Vale Canada Limited, Vale Japan Limited, PT Vale Indonesia Limited, and Vale Europe Limited (collectively, “Vale”), moved to expedite the appeal of the Superior Court's order made pursuant to reasons for decision reported at 2022 ONSC 12, currently scheduled for September 14, 2022.

Vale is a mining company that has been required to investigate and remediate its environmental impact. Vale purchased insurance policies from various primary and excess insurers, some of which are respondents. The claim pertains to numerous sites in Canada and Ontario, one in the United Kingdom, and none in New York. Vale was sued by Travelers Casualty & Surety Company in the Supreme Court of the State of New York, County of New York: Commercial Division Part 53. Vale responded by immediately suing Travelers in Ontario, and subsequently brought a second action in Ontario against its many insurers.

Myers J. (2021 ONSC 6377) held that Ontario had jurisdiction over most of the defendants and that they had not established that New York was a more convenient forum for the claims.

Vale moved in the New York proceeding to dismiss Traveler's complaint and other crossclaims against Vale, based on the principle of forum non conveniens. Borrok J.S.C. dismissed the motion and held that dismissal based on forum non conveniens was not appropriate.

ISSUES:

(1) Should the Court grant a motion to expedite the hearing of the appeal?

HOLDING:

Motion dismissed.

REASONING:

(1) No.
The Court first noted that under s. 12.1.3 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, in order to expedite these appeals, the Court must be “satisfied that the urgency of the matter requires an earlier hearing date” To aid in this determination, the Court considered the issue of comity in relation to which of Ontario or New York is, on all the facts, the more convenient forum in which to try the case. As the Court observed in James Bay Resources Ltd, comity is not a stand-alone factor but is part of the case-specific assessment of forum non conveniens.

Vale argued the driving factor for expedition of these appeals was the lack of the progression of the underlying Ontario Actions, which should proceed in tandem with New York pending a final determination on jurisdiction. The Court stated that the issue should not turn on which action was started first (New York), or which jurisdiction first issued a decision on forum non conveniens (Ontario). This form of competition between jurisdictions was wrong and unprincipled: Teck Cominco Metals Ltd, at paras. 29-30. The issue of which court should decide the litigation should be determined on true forum non conveniens principles.

As the Court observed in Teck Cominco Metals Ltd., it would not be desirable to allow technicalities such as how long it takes a particular judge to assert jurisdiction, to determine the outcome. Considerations that have little or nothing to do with where an action is most conveniently or appropriately heard, should not be allowed to carry the day. A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the forum non conveniens issue with due comity to foreign courts.

The Court further noted that courts should avoid facilitating an “unseemly race by each party to trial and judgment in the forum of its choice”: McWane Cast Iron Pipe Corp. The forum non conveniens argument in this case will fall to be determined not by lower court judgments on either side of the border, but by the respective appeal courts in both jurisdictions.
The Court concluded that there was no urgency to the appeal that would justify expediting it by several weeks. Doing so would only embroil the Court in an “unseemly race”.

Rahman v. Cannon Design Architecture Inc., 2022 ONCA 451

[Gillese, Trotter and Harvison Young JJ.A]

COUNSEL:

S. Moreau and K. Duff, for the appellant

D. A. Whitten, S. Ostrowski and N. Halum, for the respondents

FACTS:

The appellant's employment with a group of US and Canadian companies together called CannonDesign (the respondents) was governed by two agreement, an Offer Letter and an Officer Agreement (together the “Employment Contracts”). The Offer Letter referred to the Officer Agreement and provided that in the event of conflict between the two, the Offer Letter will govern.

There were two “just cause” provisions, one in the Offer Letter and the other in the Officer Agreement. The Offer Letter provision stated that no notice will be given if there is just cause to terminate. The just cause provision in the Officer Agreement stated that FR would receive one month's notice according to Paragraph 3(a). While the two provisions conflicted, because of the stipulation in the Offer Letter that it will govern in the event of conflict, it was the just cause provision in the Offer Letter that governed.

FR was given four weeks of base salary when her employment was terminated, without notice or cause. FR sued the respondents, claiming damages for wrongful dismissal. FR claimed she was entitled to a longer period of reasonable notice prior to termination and damages for CannonDesign's failure to provide such notice. She then moved for summary judgment, asking the court to declare that: (1) the termination provisions in her employment contracts were void because they conflicted with the Employment Standards Act, 2000, S.O. 2000, c. 41, (the “ESA”); and (2) the respondents were her common employers.

The motion judge interpreted the termination provisions as complying with the ESA and concluded that they governed FR's termination. The motion judge also concluded that only one of the respondents, CDAI, alone had employed FR and so dismissed the action as against the other corporate respondents. The motion judge dismissed the action and ordered FR to pay the respondents costs of $80,000. FR appealed.

ISSUES:

(1) Did the motion judge err in concluding that the termination provisions of the Employment Contracts govern the termination of her employment?

(2) Did the motion judge err in concluding that the respondents were not her common employers?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

The motion judge committed an extricable error of law reviewable on a correctness standard when he allowed considerations of FR's sophistication and access to independent legal advice, coupled with the parties' subjective intention to not contravene the ESA, to override the plain language in the termination provisions in the Employment Contracts: Amberber v. IBM Canada Ltd. It is the wording of a termination provision which determines whether it contravenes the ESA – even compliance with ESA obligations on termination does not have the effect of saving a termination provision that violates the ESA: Wood v. Fred Deeley Imports Ltd. The operative just cause provision was the one in the Offer Letter (the “Operative Just Cause Provision”). The Operative Just Cause Provision stated that no notice or payment will be given if there is just cause to terminate.

However, ESA notice and termination pay must be given for all terminations, even those for just cause, except for “prescribed employees”: ESA, s. 55. Section 2(1) of the ESA regulation Termination and Severance of Employment provides: “An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer is not entitled to notice of termination or termination pay.” The wilful misconduct standard requires evidence that the employee was “being bad on purpose”: Render v. ThyssenKrupp Elevator (Canada) Limited.

On its plain wording, the Operative Just Cause Provision gave CannonDesign the right to terminate FR's employment without notice or payment, for conduct that constituted just cause alone. That meant the Operative Just Clause Provision contravened the ESA and s. 5 rendered it void. Section 5 provides that no employer shall contract out of an employment standard and any such contracting out is void.

The Court has repeatedly held that if a termination provision in an employment contract violates the ESA – such as a “no notice if just cause” provision – all the termination provisions in the contract are invalid. Accordingly, the provisions are void and cannot govern the termination of FR's employment.

(2) Yes.

Further, the motion judge made palpable and overriding factual errors in concluding that FR had been employed by CDAI alone. The undisputed evidence was that one of the US respondents, The Cannon Corporation, played a significant role in establishing FR's compensation and administering payment.

The evidence was clear that the respondents were FR's common employers. The common employer doctrine considered in O'Reilly v. ClearMRI Solutions Ltd., recognizes that an employee may simultaneously have more than one employer. In O'Reilly, Zarnett J.A. stated that conduct which reveals that effective control over the employee resided with those members is “conduct most germane to showing an intention that there was an employment relationship with two or more members of an interrelated corporate group.”

The record in the proceeding contained a body of uncontested evidence showing that, from the outset of her employment through to its end, FR was directed and controlled by senior managers employed by The Cannon Corporation, and that the respondents were sufficiently intertwined and exerted sufficient control over FR that they must be considered common employers. As such, they were jointly and severally liable for any damages payable to FR.

Caledon (Town) v. Darzi Holdings Ltd., 2022 ONCA 455

[Brown J.A. (Motion Judge)]

COUNSEL:

K. Sonshine, for the moving party

R. Uukkivi and M. Winch, for the responding party

FACTS:

The appellants moved to set aside the Registrar's order dismissing their appeal and for an extension of time to perfect the appeal. The motion was brought in the context of a civil proceeding that found them in contempt of an injunction order and sentenced them to a fine of $1 million jointly and severally.

The appellants operated construction businesses, where they stored a large of amount of equipment and materials on several pieces of the respondent's land which they believed contravened local by-laws. The respondents were granted an injunction on September 12, 2019, which was violated by the appellants. The appellants were found in contempt of the injunction order and ordered to pay fines to the respondents. Myers J. was satisfied that the respondents had proven the three elements of contempt: Carey v. Laiken. The appellants asked the court to exercise its discretion to not grant a contempt order, largely because of economic challenges the appellants contended the pandemic posed to their businesses. Myers J. declined to exercise discretion to withhold a contempt remedy, and found the appellants guilty of contempt of court for breaching the injunction order: Town of Caledon v. Darzi Holdings Ltd. at para 29.

The parties subsequently entered into a consent agreement on March 8, 2022, under which the appellants would deliver, on March 8, all materials required to perfect the appeal and would perfect their appeal by March 31, 2022. The court issued the order on April 14, 2022 (the “Myers Order”), after the agreed upon date for perfection of the appeal. The appellants did not perfect their appeal by March 31, 2022.

On March 18, 2022, the appellants served and filed an amended notice of appeal, which alleged ineffective assistance of counsel by the appellants' former counsel as a new ground of appeal.

The Registrar of the Court had issued an order dated March 31, 2022, dismissing the appeal for delay, which the appellants received on April 12, 2022.

ISSUES:

(1) Should the Registrar's dismissal order be set aside and the time to perfect the appeal be extended?

HOLDING:

Motion granted.

REASONING:

(1) Yes.

The overarching principle governing a request to set aside a Registrar's dismissal order and for an extension of the time to perfect an appeal was whether the justice of the case requires granting or refusing the relief sought. As part of the analysis, the Court considered several factors: (i) whether the appellant formed an intention to perfect the appeal within the time prescribed by the Rules of Civil Procedure; (ii) whether the appellant moved with due dispatch to set aside the dismissal order (a matter not in dispute on this motion); (iii) the length of the delay; (iv) the explanation for the delay; (v) the merits of the proposed appeal; and (vi) any prejudice to the respondent.

Regarding the first factor, the Court distinguished intention to appeal a sentence within the time prescribed by the Rules, with intention to perfect. The Court was skeptical of the appellants intention to perfect within the prescribed time.

The second factor was not in dispute on this motion. Regarding the third factor, the Court observed that the applicant filed their motion to set aside on a reasonably prompt basis, given that they faced institutional delay on part of the Court.

Regarding the fourth factor, the Court concluded that the applicant's failure to provide a reasonable explanation for their delay in contacting past counsel weighed against them, since ineffective assistance of counsel was the ground of appeal the appellant sought to rely on in failing to perform their perfection agreement.

Regarding the fifth factor, the appellants argued two grounds of appeal against the sentence imposed of a fine of $1 million on a joint and several basis: first, they contended that the sentence was unfit and disproportionate; and second, they contended that former counsel provided ineffective assistance that resulted in a miscarriage of justice and prejudice. The Court took issue that the appellants had provided any authority of the law governing civil proceedings, and instead, provided authorities related to criminal proceedings. With respect to civil proceedings, the Court stated that the law governing civil proceedings recognized a right to effective assistance of counsel which, if breached, could occasion a miscarriage of justice that could result in setting aside an order in a civil contempt proceeding: OZ Merchandising Inc. v. Canadian Professional Soccer League Inc. at para. 44. The Court concluded that the merits of the appellants' ineffective assistance of counsel ground of appeal were regarded as very weak in determining the motion to set aside and extend.

Regarding the sixth factor, the respondents alleged that the Court should exercise discretion and dismiss the motion on the basis that the appellants' alleged continuing breach of the injunction order disentitled them to a hearing of their sentence appeal: Dickie v. Dickie at para. 6. Brown J.A contended that although a panel has the authority to refuse to entertain an appeal, a single judge may not have the same authority.

The Court then considered several factors to weigh and balance as part of determining the overall justice of the case.

On the one hand, a number of factors weighed against granting the appellants' motion: the Court concluded that the appellants did not intend to perfect their appeal within the time prescribed by the Rules, nor did they intend to perfect their appeal within a reasonable time after receiving the issued and entered Myers Order; the appellants did not perform their obligations under the March 8 agreement to perfect; the delay of the appellants in initiating steps to take out the Myers Order was not reasonable; the appellants did not provide a reasonable explanation about their delay in asserting ineffective assistance of counsel as a ground of appeal; and, finally, that their ground of appeal was very weak.

On the other hand: the Court concluded the delay in perfecting the appeal was not lengthy; the appellants had an arguable ground of appeal regarding the fitness of the sentence, in terms of the amount of the fine; and the Town did not adduce direct evidence of prejudice, although certainly the appellants' delay in and of itself gave rise to prejudice.

Given the existence of an arguable ground of appeal based on the size of the fine, together with the ability of the Court to manage the balance of the appeal's pre-hearing steps in a way to minimize the prejudice of delay to the Town, the Court decided to exercise discretion and set aside the Dismissal Order, but on strict terms, which also constituted the directions sought by the appellants on this motion.

Antchipalovskaia v Guestlogix Inc., 2022 ONCA 454

[Trotter, Coroza and Favreau JJ.A.]

COUNSEL:

L. Scott for the appellants

A. Rosenberg for the respondents

FACTS:

The appellant, Guestlogix Inc., appealed from a judgment finding that the respondent, MA, was entitled to twelve months notice for dismissal without cause. The twelve month notice period was partially based on the motion judge's finding that the respondent was continuously employed by the appellant for eight years, from 2011 to 2019.

However, the appellant terminated the respondent's employment in 2016 in the context of creditor protection proceedings under the Companies' Creditors Arrangement Act (the “CCAA”). As part of those proceedings, the Superior Court made an order providing for the payment of creditors, including the respondent, given her status as a former employee at the time the order was made, and explicitly releasing any claims by creditors called the Plan of Compromise and Arrangement (the “Plan”). The appellant subsequently re-hired the respondent on the same terms as her previous employment. The appellant then terminated the respondent's employment without cause in 2019.

The respondent brought an action for wrongful dismissal, claiming that she was entitled to common law notice. The motion judge found that the termination provisions in the employment contract were invalid because they did not comply with the minimum requirements in the Employment Standards Act (the “ESA”). Having found that the termination provisions were invalid, the motion judge went on to consider the respondent's entitlement to common law notice. In that context, the motion judge held that the respondent's employment with the appellant should be treated as continuous from 2011 to 2019. In doing so, she noted that the appellant issued a Record of Employment that identified the respondent's first day of work as July 5, 2011, and that the appellant calculated the respondent's entitlements under the ESA on the basis of 7 years and 11 months of employment. When assessing the respondent's entitlement at common law, the motion judge noted that the respondent did not sign a release in the CCAA proceedings but she did not consider the significance of the court ordered release.

Ultimately, the motion judge held that twelve months notice was appropriate in the circumstances. She awarded damages to the respondent “reflecting a twelve (12) month notice period, less the amount of the [respondent]'s Claim in the CCAA proceedings and the amounts the [respondent] has been paid as a result of her termination of employment.”

ISSUES:

(1) Did the motion judge err in treating the respondent's employment with the appellant from 2011 to 2019 as one continuous period of employment for the purpose of determining her entitlement to common law notice?

(2) If so, what notice period was the respondent entitled to at common law?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes.

The motion judge erred in failing to give effect to the termination of the respondent's employment in 2016 and the release granted in the CCAA proceedings. In determining the respondent's entitlement to common law notice, the motion judge should have treated the respondent's period of employment as running from 2016 to 2019. However, the Court disagreed with the appellant's argument that the respondent's period of employment from 2011 to 2016 should play no role in determining the notice period. Rather, the respondent's years of employment prior to 2016 should have been taken into account in determining her notice period as her prior years of service provided a benefit to the appellant.

While the motion judge was aware that the respondent's employment had been terminated in the context of the CCAA proceedings and that there was a court ordered release, she did not address whether and to what extent these circumstances should impact the length of common law notice, which was an error in principle. The motion judge recognized that, under the ESA, the respondent's employment with the appellant was to be treated as one continuous period. However, contrary to the decision in Manthadi v ASCO Manufacturing, the motion judge failed to address the “sharp distinction” between the calculation of the respondent's length of employment under s. 9(1) of the ESA and at common law. In determining the respondent's length of employment for the purpose of deciding the common law notice period, the motion judge should not have relied on the deemed continuity of employment under s. 9(1) of the ESA.

While the circumstances that gave rise to the termination and resumption of the respondent's employment were different than in Manthadi, the termination and CCAA release were nevertheless relevant to determining the respondent's length of employment and the appropriate notice period. By failing to consider the effect of the termination and CCAA release, the motion judge erred in treating the respondent's employment with the appellant as continuous.

The motion judge gave no consideration to the interruption of the respondent's employment and the CCAA release when weighing the factors in Bardal v Globe & Mail Ltd. While Manthadi provided that a court can give “some recognition” to an employee's prior experience when dealing with successor employer cases, the Court noted that the current case was different than treating the two separate periods of employment as continuous. When dealing with a successor employer, the court must look at all the circumstances, including the intentions of the parties, in deciding what effect the employee's earlier period of employment should have on the notice period. By failing to do so, the motion judge made an error in principle that tainted her analysis of the Bardal factors.

In addition, a twelve month notice period was already at the high end of the range for someone with the respondent's responsibilities and qualifications who worked for a period of approximately eight years. It did not fall within the acceptable range for someone who worked for a period of 2.75 years in circumstances where the CCAA court ordered release clearly contemplated that the appellant would be released from any liabilities predating the implementation of the Plan. The court found that the motion judge's determination that twelve months was an appropriate notice period should be set aside.

(2) Seven months.

The court found that a notice period of seven months was appropriate in the circumstances. This notice period was longer than the notice period the respondent would have been entitled to if she had first started her employment with the appellant in 2016, thereby accounting for the benefit the appellant received from her previous period of employment. At the same time, this notice period recognized and gave effect to the intent of the court ordered release in the CCAA proceedings, which was to release the appellant from liabilities arising prior to the implementation of the Plan.

2483038 Ontario Inc. v. 2082100 Ontario Inc, 2022 ONCA 453

[Feldman, Pepall and Tulloch JJ.A.]

COUNSEL:

B. Hanuka and A. Pugh, for the appellants

A.D.J. Dick and D. Hamson, for the respondents

FACTS:

The parties entered into a franchise agreement to operate a “Fit for Life” restaurant in Oakville. After a brief period of operation, the respondents sought to rescind the agreement on the ground that they had not received the appropriate financial disclosure under the Arthur Wishart Act (Franchise Disclosure), 2000 (“Wishart Act”). They sought compensation and damages from the appellants.

The trial judge held that the respondents were entitled to rescind the agreement under s. 6(2) of the Wishart Act and found S.D. to be personally liable as a franchisor's associate.

ISSUES:

(1) Did the trial judge err by not applying the “informed investment” test to the rescission analysis?

(2) Did the trial judge err in determining that S.D. was a “franchisor's associate”?

HOLDING:

Appeal dismissed.

REASONING:

(1) No.

There was no error in the trial judge's interpretation and application of the “informed investment” test. The trial judge was correct in her conclusion that the Court's decision in Raibex Canada Ltd. v. ASWR Franchising Corp. does not import the requirement of an inability to make an “informed investment” into the defective certificate analysis. Requiring a franchisee to demonstrate they were unable to make an informed investment in a deficient certificate case would undermine one of the purposes of the Wishart Act. An important purpose of franchise disclosure certificates is that they attach personal liability to the signatories, which is intended to incentivize the signatories to ensure the contents of the disclosure documents are accurate. The Court agreed with the trial judge's finding that the attachment of personal liability to signatories is a free-standing objective and is not tied to any impact on the recipient.

The Court agreed with the conclusion of the trial judge that the absence of the certificate is a fatal flaw in the disclosure. Therefore, the franchisees had a right to rescind the franchise agreement without penalty under s. 6(2) of the Wishart Act, and did so lawfully.

(2) No.

Both the appellants and respondents agreed that S.D., as the sole director and shareholder, had control over the franchisor, and therefore met the first step of the “franchisor's associate” test under the Wishart Act. The trial judge made findings of fact based on the evidentiary record that the statements made at pages two to four of the disclosure documents were “representations” for the purpose of granting, marketing, or offering to grant the franchise. S.D. also gave sworn testimony that he intended to be personally liable for his signature. Based on these facts, S.D. was directly involved in the grant of the franchise under the second step of the “franchisor's associate” test. The appellants' proposed reading of the statute would contravene established principles of statutory interpretation. In interpreting the Wishart Act, the Court has emphasized the need to defer to the legislature's wording.

The representations were made directly to the franchisee parties because S.D. reviewed the disclosure documents, permitted his signature to be applied after the statements he wrote at pages two to four, and knew that this package would be provided to prospective franchisees. There was no error in the trial judge's reasons or application of the law.

SHORT CIVIL DECISIONS

Fisher v Soroka, 2022 ONCA 442

[van Rensburg, Harvison Young and Copeland JJ. A]

COUNSEL:

D.M. Steele and D.W. Veinot, for the appellant

S.D. Gadbois, for the respondents

Toronto-Dominion Bank v Overland R.N.C. Inc, 2022 ONCA 447

[Tulloch, Miller, and Trotter JJ. A]

COUNSEL:

P.J. Pape and C. Senese, for the appellants

M.R. Kestenberg and B.C. Jusko, for the respondent

Keywords: Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Summary Judgment, Dickinson v Royal Bank of Canada, [1976] 2 S.C.R. 834

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.

Canada: Court Of Appeal Summaries (June 6, 2022 – June 10, 2022)
Blaney's Appeals

Table of Contents

CIVIL DECISIONS

SHORT CIVIL DECISIONS

Canada: Court Of Appeal Summaries (June 6, 2022 – June 10, 2022) Blaney's Appeals

Table of Contents

CIVIL DECISIONS

SHORT CIVIL DECISIONS

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Canada: Court Of Appeal Summaries (June 6, 2022 – June 10, 2022)
Blaney's Appeals