ARTICLE
20 March 2023

Court Of Appeal Summaries (March 6 – 10, 2023)

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Following are this week's summaries of the Court of Appeal for Ontario for the week of March 6, 2023.
Canada Litigation, Mediation & Arbitration
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Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario for the week of March 6, 2023.

In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), the Court released its decision pertaining to three appeals concerning the Election Finances Act ("EFA") and whether it infringed the informational component of the right to vote under section 3 of the Charter. The amendments to the EFA restricted spending on advertising by third parties to $600,000 in the twelve months leading up to the provincial election. In each case, the appellants argued that the application judge erred in interpreting and applying sections 33 and 3 of the Charter, and that such infringements were not saved under section 1. The Court considered the constitutionality of the provisions of the EFA that were struck down, then re-enacted unchanged through Protecting Elections and Defending Democracy Act2021, which invoked the notwithstanding clause under section 33 of the Charter. Justices Zarnett and Sossin, for the majority, held that the application judge did not err in finding that there was no infringement of section 33, but did err in finding no infringement of section 3. Further, applying the Oakes test, the majority of the Court held that the infringement of section 3 was not saved under section 1 of the Charter. In a dissenting opinion decision, Justice Benotto found that section 3 of the Charter was not infringed, agreeing with the application judge.

In Children's Aid Society of London and Middlesex v. T.E., the Court considered an appeal from a motion judge's decision dismissing the appellant's motion to be added as a party to a child's protection proceeding. The Court found that the motion erred in considering only the discretionary party status under the Family Law Rules stating that the motion judge should have also considered the provincial legislation, Child, Youth and Family Services Act, and the federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families. Accordingly, the motion judge erred by equating the appellant kin giver to a foster parent (the latter being statutorily excluded as a having party status). In so doing, the Court found that the child protection proceeding should not have been dismissed before determining who the parties were. The Court found that by not determining the parties and dismissing the application, the motion judge failed to consider the best interests of the child.

In Niagara Falls Shopping Centre Inc. v. LAF Canada Company, the Court grappled with determining the obligations of a landlord and tenant to a commercial lease pursuant to a force majeure clause. The Court held that the force majeure clause was triggered by the government lockdown announcement during the COVID-19 pandemic. However, the Court stated that the force majeure clause only operated to excuse the landlord of its obligations during the lockdown period. This was because the landlord's inability to fulfill the contract was solely because of the government announcement, whereas the tenant's inability pay rent was a lack of funds. A lack of financial ability to pay was expressly excluded as an event that triggered the force majeure clause.

Other topics covered this week included a extension of time to appeal, summary judgment and a claim for coverage under a credit risk insurance policy.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.597.4895 Email


Table of Contents

Civil Decisions

Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139

Keywords: Election Law, Election Spending Restrictions, Constitutional Law, Freedom of Expression, Political Advertising, Notwithstanding Clause, Oakes Test, Election Finances Act, R.S.O. 1990, c. E.7, s. 1(1), s. 37.0.1, s. 37.10.1(2), s. 37.10.1(3.1), s. 37.10.2, s. 45.1, s. 46.0.2, s. 47, s. 48, Canadian Charter of Rights and Freedoms, s.1, s.2(b), s. 3, s. 33, s. 33(1), s. 33(3), Protecting Elections and Defending Democracy Act2021, S.O. 2021, c. 31, Election Act, R.S.O. 1990, c. E.6, s. 9(2), s. 53.1(1), Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Harper v. Canada (Attorney General), 2004 SCC 33, Working Families Ontario v. Ontario, 2021 ONSC 4076, Housen v. Nikolaisen, 2002 SCC 33, Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, Frank v. Canada (Attorney General), 2019 SCC 1, Figueroa v. Canada (Attorney General), 2003 SCC 37, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, R. v. Oakes, [1986] 1 S.C.R. 103, Harper v. Canada (Attorney General), 2001 ABQB 558, Marcoux v. Bouchard, 2001 SCC 50, R. v. G.F., 2021 SCC 20, Robert Leckey & Eric Mendelsohn, "The Notwithstanding Clause: Legislatures, Courts, and the Electorate" (2022), 72:2 U.T.L.J. 189, Yasmin Dawood, "The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints" (2016), 76 S.C.L.R. (2d) 353, at p. 359

Fockler v. Speigel, 2023 ONCA 148

Keywords: Solicitor and Client, Negligence, Civil Procedure, Summary Judgment, Limitation Periods, Appeals, Fresh Evidence, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4-5, Rules of Civil Procedure, rr. 37.14, r. 59.06, Waite v. Gershuny (2005), 194 O.A.C. 326 (Div. Ct.), Dass v. Kay, 2021 ONCA 565, Palmer v. The Queen, [1980] 1 S.C.R. 759

Children's Aid Society of London and Middlesex v. T.E., 2023 ONCA 149

Keywords: Family Law, Child Protection, Custody and Access, First Nations, Customary Care Agreements, Best Interests of the Child, Civil Procedure, Party Status, Kin Caregivers, Foster Parents, Children's Law Reform Act, R.S.O. 1990, c. C.12., Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, section 74(1) and section 79(1), First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Family Law Rules, O. Reg. 114/99, r. 7(5), M.L. v. Dilico Anishinabek Family Care, 2022 ONCA 240, A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, Catholic Children's Aid Society of Toronto v. D.L., 2014 ONCJ 587, Durham Children's Aid Society v. J.S., 2022 ONSC 2535, SMCYFS v. D.D., 2021 ONSC 1994, Windsor-Essex Children's Aid Society v. D.L.H., 2015 ONCJ 310, Cadieux v. Cloutier, 2018 ONCA 903

Grimm v. Ontario (Children's Lawyer), 2023 ONCA 161

Keywords:Family law, Parenting, Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious,Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Rules of Civil Procedure, r. 61.06, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), R. v. R. (2002), 58 O.R. (3d) 656 (C.A.), A.G.L. v. K.B.D (2009), 93 O.R. (3d) 409 (S.C.), Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, McNaughton Automotive Limited v. Co-Operators General Insurance Company (2008), 95 O.R. (3d) 365 (C.A.), Brad-Jay Investments Ltd. v. Szijjarto, 218 O.A.C. 315 (2006) (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159

Keywords:Contracts, Interpretation, Real Property, Commercial Leases, Force Majeure, COVID-19 Restrictions, Civil Procedure, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited, [1976] 1 S.C.R. 580, Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235

Short Civil Decisions

Rivas v. Anobile, 2023 ONCA 158

Keywords: Family Law, Matrimonial Home, Trust Property, Fraud, Breach of Fiduciary Duty

908593 Ontario Limited v. Atradius, 2023 ONCA 156

Keywords:Bankruptcy and Insolvency, Receiverships, Contracts, Insurance, Interpretation, Standard of Review, Palpable and Overriding Error, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA 908, Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, Crosby (Estate) v. Native Fishing Assoc., 2001 BCCA 118, Chilton v. Co-Operators General Insurance Co. (1997), 32 O.R. (3d) 161 (C.A.)

Tiwari v. Singh, 2023 ONCA 163

Keywords: Real Property, Mortgage,  Civil Procedure, Summary Judgment, Evidence, Admissibility, Hearsay, Documents, Authenticity Rules of Civil Procedure, r. 20.02(1), Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200

Buffone v. Sokil, 2023 ONCA 168

Keywords: Wills and Estates, Civil Procedure, Contempt, Appeals, Stay Pending Appeal, Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, Belton v. Spencer, 2020 ONCA 623

Hill v. Cambridge (City), 2023 ONCA 164

Keywords: Civil Procedure, Vexatious Litigants, Appeals, Extension of Time, Rules of Civil Procedure, r. 2.1.01(1), Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208

CIVIL DECISIONS

Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139

[Benotte, Zarnett and Sossin JJ.A.]

Counsel:

H. Goldblatt, C. Davies, and A. Goldfinch, for the appellants the Elementary Teachers' Federation of Ontario and F.P.
P. Cavalluzzo, A. Telford, M. Thomarat, and K. Sier, for the appellants Working Families Coalition (Canada) Inc. and the Ontario English Catholic Teachers' Association
S. Ursel, K. Allen, E. Home, and N. Abraham, for the appellants the Ontario Secondary School Teachers' Federation and L.W.
R.W. Staley, J.G. Bell, D.A. Fenton, A.N. Sahai, and M.E. Steeves, for the respondent the Attorney General of Ontario
S. Aylward and D. Rakic, for the intervener the Chief Electoral Officer of Ontario
J. Cameron, C.D. Bredt, M. Kakkar, and D. Milton, for the intervener Centre for Free Expression at Ryerson University
C. Smith, M. Law, and P. Wodhams, for the intervener Democracy Watch
L. Rauccio, S. Armstrong, W.D. Rankin, and G. Buitenhuis, for the intervener the Canadian Civil Liberties Association

Keywords: Election Law, Election Spending Restrictions, Constitutional Law, Freedom of Expression, Political Advertising, Notwithstanding Clause, Oakes Test, Election Finances Act, R.S.O. 1990, c. E.7, s. 1(1), s. 37.0.1, s. 37.10.1(2), s. 37.10.1(3.1), s. 37.10.2, s. 45.1, s. 46.0.2, s. 47, s. 48, Canadian Charter of Rights and Freedoms, s.1, s.2(b), s. 3, s. 33, s. 33(1), s. 33(3), Protecting Elections and Defending Democracy Act2021, S.O. 2021, c. 31, Election Act, R.S.O. 1990, c. E.6, s. 9(2), s. 53.1(1), Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Harper v. Canada (Attorney General), 2004 SCC 33, Working Families Ontario v. Ontario, 2021 ONSC 4076, Housen v. Nikolaisen, 2002 SCC 33, Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, Frank v. Canada (Attorney General), 2019 SCC 1, Figueroa v. Canada (Attorney General), 2003 SCC 37, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, R. v. Oakes, [1986] 1 S.C.R. 103, Harper v. Canada (Attorney General), 2001 ABQB 558, Marcoux v. Bouchard, 2001 SCC 50, R. v. G.F., 2021 SCC 20, Robert Leckey & Eric Mendelsohn, "The Notwithstanding Clause: Legislatures, Courts, and the Electorate" (2022), 72:2 U.T.L.J. 189, Yasmin Dawood, "The Process of Electoral Reform in Canada: Democratic and Constitutional Constraints" (2016), 76 S.C.L.R. (2d) 353, at p. 359

facts:

In 2017, the year before the 2018 provincial election, Ontario legislatively imposed a $600,000 spending limit on political advertising by third parties. The limit applied to the 6-month period prior to the writs of election being issued. Ontario once again amended the Election Finances Act ("EFA") in 2021, the year before the 2022 provincial election. This time it extended the period to which that monetary limit applied from 6 months to 12 months before the writs, but with no increase in the amount that could be spent.

The amendments sparked constitutional challenges. In the first proceedings ("Working Families 1"), the appellants successfully challenged the $600,000 spending limit that applied during the 12-month pre-writ period and other related EFA provisions on the basis that they infringed third party advertisers' rights to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms ("Charter") and could not be justified under s. 1. In response to that ruling, the Ontario government announced its intention to invoke the notwithstanding clause in s. 33 of the Charter, and introduced Bill 307, which received Royal Assent five days later as the Protecting Elections and Defending Democracy Act2021 ("PEDDA").

In the second proceeding, the appellants challenged the legislation as a violation of s. 3 of the Charter, and as an improper use of the notwithstanding clause. They relied on s. 3, because, unlike free expression rights under s. 2(b) of the Charter, which fall within the ambit of the notwithstanding clause, voting rights do not fall within the ambit of the notwithstanding clause. The application judge concluded that the use of the notwithstanding clause in enacting PEDDA was not improper, and that the re-enacted spending limits on third party advertising during the pre-writ period did not infringe the right to vote under s. 3.

The appellants appealed on the basis that the application judge erred in his interpretation and application of ss. 3 and 33 of the Charter. They argued that he erred in finding that a spending restriction that is twice as restrictive as the 6-month restriction did not infringe voting rights under s. 3.

issues:

(1) Did the application judge err in interpreting and applying s. 33 of the Charter?
(2) Did the application judge err in interpreting and applying s. 3 of the Charter?
(3) If s. 3 was infringed, could the infringement be saved under s. 1?

holding:

Appeals allowed.

reasoning:

(1) No.

The Court agreed with the application judge's rejection of the appellants' claim that s. 33 was not validly invoked, as its formal requirements were met and no other precondition to its invocation existed in law (Ford v. Quebec (Attorney General)). No substantive justification by a legislature for invoking the notwithstanding clause is required.

The Ontario Secondary School Teachers' Federation ("OSSTF") argued that s. 33(3), which limited the validity of an invocation of the notwithstanding clause to five years, placed an internal limit on the ability of the legislature to invoke s. 33 to shield legislation that undermines electoral fairness. OSSTF argued that this internal limit arose from: (i) the text of s. 33(3), (ii) the structural primacy of s. 3 in the Charter, and (iii) the norms and conventions for reforming election law affirmed by the unwritten principles of democracy and the rule of law.

The Court found Section 33(1) expressly exempted s. 3 of the Charter from the ambit of the notwithstanding clause. Section 3's guarantee of rights was in full force and applicable to the legislation even though it contained the notwithstanding clause. Section 3 was either violated by the legislation or it was not. The scope and importance of the s. 3 rights cannot serve to restrict the operation of the notwithstanding clause regarding other rights to which the Charter says it did pertain.

OSSTF further argued that the Supreme Court's decision in Ford was no longer an answer to the concerns it raised considering the evolution of Charter jurisprudence since Ford was decided in 1988. The Court noted that Ford had not been overruled or doubted by any subsequent Supreme Court decision. The core principles governing the interpretation and application of s. 33 in Ford must guide the review of s. 33. The notwithstanding clause was expressly and clearly invoked. The formal (and only) requirement for its invocation was complied with. The invocation will expire after five years, and the electorate will be able to consider the government's use of the clause when it votes. And, as s. 3's application to the legislation was unaffected by the invocation of the notwithstanding clause, the fact that it was validly invoked still left room for s. 3 to operate.

(2) Yes.

(a) The proper analytic framework under s. 3 of the Charter

(i) General Considerations
Section 3 should be read broadly and in view of the principles that underlie it. A citizen has a right to exercise their vote in an informed manner, which entails being reasonably informed of all electoral choices.

(ii) Section 3 protects the voter's right to receive information in connection with elections

The analytical framework for a s. 3 challenge begins with a careful reading of the text. The reference in s. 3 to "[e]very citizen of Canada" having the right to vote in a provincial or federal election was directed toward participation in an election, as opposed to a right to lobby elected representatives or a free-standing right to engage in political discourse outside of elections. S. 3 protected the rights of individuals as voters in the electoral process, not the rights of third parties who hoped to communicate with voters.
OSSTF argued that the application judge incorrectly viewed voters as only "consumers" of political information, and not purveyors of it. OSSTF contended that the application judge erred by failing to situate the right to meaningful participation within the broader process of reciprocal political discourse, which is the bedrock of deliberative democracy.
The Elementary Teachers' Federation of Ontario ("ETFO") focused on the right to effective representation under s. 3. ETFO argued that the application judge incorrectly considered only the impact of the challenged spending restrictions on elections, and not the free flow of relevant information necessary for the proper functioning of the democratic process.
The Court did not accept that the scope of s. 3 was as broad as argued by OSSTF and ETFO. Any limit on third party spending would presumptively violate s. 3 on their reading of the scope of the voter's right to relevant information.

Democracy Watch ("DW") submitted that a s. 3 analysis should be alive to the important differences among third party advertisers themselves. DW highlighted that the egalitarian model was concerned about the undue influence that wealthy third parties may wield in the electoral process. Third parties, like the appellants, however, represented thousands of members who lacked resources to convey political information on their own and should not be subject to the same restrictions as a single or small group of wealthy businesses or individuals.

While the Court accepted that interpreting s. 3 within the egalitarian model required sensitivity to context, it did not accept that certain third-party advertisers conveyed information of higher value under s. 3 than others, or that the nature or make-up of third parties constitutionally required different treatment under the egalitarian model.

(iii) The egalitarian model and the informational component of the right to vote

The Court stated that under the "egalitarian model", it is appropriate to limit third party spending more strictly than the spending of candidates and political parties. In a s. 3 analysis, one cannot start from the proposition that any limiting of third-party spending implies a breach of the right to vote in s. 3. Some level of spending limits is necessary to enhance the right to vote. The Supreme Court has made clear that there can come a point when a spending limit goes from being voting right-enhancing to being voting right-infringing.

(iv) When the informational component of s. 3 is infringed – the test and the proxies
In the Court's view, what the appellants had to show to establish a violation of s. 3 was that the challenged spending restrictions limited information "in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented". To determine whether the standard was violated, two proxies, or methods of ascertaining whether the restriction was constitutionally offside were laid down by Harper v. Canada (Attorney General) ("Harper").

The first proxy was whether the restriction was "carefully tailored to ensure that candidates, political parties and third parties were able to convey their information to voters", as opposed to being "overly restrictive". The requirement that the restriction be carefully tailored in the sense necessary to determine whether s. 3 had been infringed must be viewed differently from minimal impairment. Unlike in a minimal impairment analysis, the appellants bore the burden of showing an absence of careful tailoring under s. 3. Similarly, in considering whether a s. 3 infringement had taken place, the careful tailoring analysis must not focus on whether a reasonable choice was made among alternatives that infringe the Charter right. Instead, the analysis must focus on whether an infringement had occurred at all. Therefore, the question was whether the challenged spending restrictions drew the line at the point of preventing the well-resourced from dominating political discussion without being overly restrictive to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented. According to the Attorney General, the controlling legal test was whether the challenged spending restrictions limited information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented.

The Court agreed with the Attorney General about the constitutional standard but disagreed that the reference to "carefully tailored" spending restrictions could be easily distinguished from the ultimate question of whether rights of citizens to meaningfully participate in the political process and to be effectively represented had been undermined. The two were inextricably linked as demonstrated by Bastarache J.'s use of the term "must" in relation to careful tailoring. In the Court's view the use of the term "must", indicated that careful tailoring was a consideration that the Court was to use in determining whether the constitutional standard – the voter's right to meaningfully participate in the electoral process – had been violated. The application judge accepted that the challenged spending restrictions had to be carefully tailored within the meaning of Harper in order to be found consistent with s. 3. However, the Court found he erred in the way he conceptualized and applied that standard.
The second proxy in assessing whether the constitutional standard was met was the level of information campaigned that the restrictions would permit a third party to conduct. Harper recognized that nothing more be permitted than a "modest informational campaign", as opposed to a campaign that would be capable of determining the outcome. The Court found the application judge erred in not making a finding that a modest informational campaign could be conducted.

The presence or absence of careful tailoring were not additional tests. They were considerations that must be used to inform whether the constitutional standard had been violated by spending restrictions because they "restrict information in such a way as to undermine the right of citizens to meaningfully participate in the political process and to be effectively represented": Harper.

(b) The application judge erred in applying s. 3 to this case

(i) The required focus was the extension compared to the previous restrictions
The appellants contended that the application judge erred in the conclusions he reached on each of the proxies. They stressed that the application judge did not properly explain or justify how the challenged spending restrictions could be carefully tailored when he had previously (in Working Families 1) found them to be unnecessary to achieve electoral fairness, given that the previous restrictions accomplished the desired objective. The Court agreed that the failure of the application judge to focus on the significance of the extended restrictions brought about by the PEDDA re-enactments tainted his analysis.
The application judge was required to focus on the effect of the challenged spending restrictions re-enacted by PEDDA, given what had preceded them. Under the 2017 EFA provisions, a third party could spend unlimited amounts with a view to providing information to voters in the seventh to twelfth month before the election period, and a further $600,000 in the 6 months preceding it. That changed with Bill 254 and then PEDDA, which extended the restricted period to 12 months without increasing the spending limit.

The object of the PEDDA re-enactments was to restrict more severely what could be spent on political advertising in the 12-month pre-writ period than was the case under legislation in effect since 2017 (leaving aside the constitutionally invalid 2021 amendments struck down in Working Families 1). Since the definition of political advertising embraces advertising to voters to promote or oppose party leaders, parties, or the election of a candidate, and includes taking a position on issues with which any of them are closely associated, the goal of PEDDA was clearly to restrict information more severely being provided to voters than had previously been the case.

The Court concluded that the significance of the additional 6 months of restricted spending should have been the focus of the enquiry. Given that the PEDDA re-enactments were designed to restrict the ability of third parties to convey information to voters about whom they should vote for, and about the issues those vying to be their representatives were associated with, the operative question concerned the effect of the increased restrictions, considering what had preceded them.

(ii) The application judge's error with respect to "careful tailoring"

The Court found the application judge made three errors in his analysis of careful tailoring. First, he failed to apply his findings from Working Families 1 that bore on the question of careful tailoring that was raised with respect to the challenged spending restrictions. Second, he divorced the length of the spending restrictions from their quantum, which had to be considered together. Third, he conflated the approach to careful tailoring required in a s. 3 analysis with a different and inapplicable analysis by his reference to the impugned legislation being "one of a number of reasonable alternatives".

In the face of the application judge's findings in Working Families 1 as to the lack of justification for the changes to third party advertising restrictions, on which the appellants now relied for a different purpose, and no new intervening evidence produced by the Attorney General in Working Families 2 to counter this finding, the Court concluded that the challenged spending restrictions could not be said to have been carefully tailored. Careful tailoring was only one of two proxies that a court should consider in deciding whether a violation of the constitutional standard had occurred.

(iii) The application judge made no finding that a modest informational campaign could be mounted

The Court found that the application judge focused on the appellants' position that the challenged spending restrictions would impair their ability to conduct a multimedia persuasive campaign. He referred to the appellants' expert, SF, who testified that a "minimally effective", two-week advertising campaign would cost at least $1.2 million, but where effective was measured by the ability to change voter behaviour. The application judge concluded that s. 3 did not entitle third party advertisers to mount campaigns that would persuade or influence voters. However, after Harper, the question was whether the challenged spending restrictions permitted a modest informational campaign. He did not go on to consider whether any evidence allowed him to conclude that they did.

The Court further found that the application judge did not refer to evidence in the record before him in this regard. Rather, he referred to the Supreme Court's decision in Harper, where Bastarache J. commented that "third parties [can] engage in a significant amount of low-cost forms of advertising". That comment from Harper, however, was grounded in the evidentiary findings made at trial in that case. As a result, the Court held that the application judge's observations about low-cost methods of advertising did not adequately address the question of whether a modest informational campaign could be mounted. The modest informational campaign had to be one that could be mounted given the 12-month restricted period. The fact that the Attorney General points to no evidence that a modest informational campaign could be mounted within the challenged spending restrictions was telling on the ultimate question.

(c) Conclusion on s.3

Adopting the reasoning from Harper, the Court concluded that because the challenged spending restrictions were not carefully tailored, and there was no finding that they would permit a modest informational campaign, they overly restricted the informational component of the right to vote. They therefore undermined the right of citizens to meaningfully participate in the political process and to be effectively represented. Consequently, the Court found they infringed s. 3 of the Charter.

(3) No.

The Court noted that in this case the Attorney General did not argue that if a s. 3 violation were found, it was justified under s. 1. Nonetheless, the Court considered the issue. Having found an infringement of the right to vote, the burden was on the Attorney General, under the first two prongs of the Oakes test, to establish that this extension of the duration of the restricted period, together with the unchanged spending limits, furthered a pressing and substantial objective by means rationally connected to achieving that purpose. Since there was no evidence that the challenged spending restrictions were necessary to accomplish anything toward securing the egalitarian model of elections that was not already accomplished by the restrictions in effect prior to 2021, the Court concluded that they were not minimally impairing of the s. 3 rights in issue. The Court endorsed the statement by the application judge from Working Families 1, that "[a] 12-month impairment is twice as long, and twice as restrictive, as a 6-month impairment, and so by definition is not minimal." The Court was also not satisfied on the final prong of the Oakes test, namely proportionality, that the benefits of the challenged spending restrictions were worth the cost of the rights limitations. No benefits were identified as flowing from extending the duration of the spending limits while freezing their quantum.

Dissenting Decision of Benotto J.A.

(1) No.

Justice Benotto agreed with the majority that s. 33 was properly invoked by the application judge.

(2) No.

Justice Benotto disagreed with the majority of the Court's finding that the application judge erred by finding no s. 3 infringement. In particular, she did not agree with the inferences drawn from Harper by the majority. With respect to the two proxies created by Harper, Benotto J. disagreed with the meaning ascribed to the first proxy and did not agree that the second was followed.

Harper begins with the basic proposition that spending limits are necessary and enhance the right to be an informed voter. Without spending limits, it is possible for the affluent or a number of persons or groups to dominate the electoral discourse. The controlling test is not whether the spending limits are carefully tailored but whether they restrict information in such a way to undermine the right of citizens to meaningfully participate in the electoral process, which includes the right to vote in an informed manner.

Justice Benotto criticized the majority's inference that the careful tailoring requirement invites the court to consider justification at the s. 3 stage of analysis because it conflates the s. 3 analysis with the s. 1 analysis. The s. 3 analysis does not require an inquiry into why the government enacted spending limits but rather the inquiry should be focused on whether the spending limits restrict information in a way that undermines the right to meaningfully participate in the electoral process. Benotto J. held that this was how the application judge approached the s. 3 analysis and that the application judge was correct in doing so.
Benotto J. found that the majority focused on the words 'carefully tailor' without adequate recognition of the words that explain the purpose of the careful tailoring, which is "to ensure that candidates, political parties and third parties are able to convey their information to voters." Justice Benotto found that the application judge did not err by focussing on extended restrictions because the application judge: (1) recognized the importance of the extension; (2) correctly considered the legislation before him and whether it would stand or fall on its own; and (3) was entitled to accept the respondent's expert evidence.

Justice Benotto did not agree that the application judge concluded that the spending restrictions were "in some other sense 'reasonable'", as the majority suggested. Instead, the application judge's reference to "reasonable" was made in the context of discussing the expert evidence and he determined that the restrictions were aimed at promoting the egalitarian model and citizens could still cast an informed vote.

Justice Benotto further disagreed that the appellants were entitled to rely on findings made in a different case with a different analytic structure, and that as a result the application judge properly recognized that he was required to make findings in this case through a different legal lens than in Working Families 1. Ultimately, Justice Benotto concluded that the application judge did not err in how he approached the analysis and applied the correct legal analysis with no palpable and overriding errors.

Regarding the second proxy from Harper, Benotto J. found that the application judge did not fail to make a specific finding, as the majority found, but rather that the application judge made a finding that the legislation permits a modest informational campaign. Justice Benotto did not agree that the application judge's reasons were ambiguous, but even if they were, R. v. G.F. instructs that the interpretation consistent with the presumption of correct application must be preferred over those that suggest error. Benotto J. was satisfied that the application judge followed the directives in Harper and made findings open to him on the evidence.

(3) As Justice Benotto found that s. 3 of the Charter was not infringed, it was unnecessary to consider whether the infringement could be saved under s. 1.

Fockler v. Speigel, 2023 ONCA 148

[Zarnett, Thorburn and Copeland JJ.A.]

Counsel:

R. Fockler and L. Cartwright, acting in person
K. Preston, for the respondents J. Speigel and Lawyers' Professional Indemnity Company
B. Martin, for the respondent G. Kassabian

Keywords: Solicitor and Client, Negligence, Civil Procedure, Summary Judgment, Limitation Periods, Appeals, Fresh Evidence, Limitations Act, 2002, S.O. 2002, c. 24, ss. 4-5, Rules of Civil Procedure, rr. 37.14, r. 59.06, Waite v. Gershuny (2005), 194 O.A.C. 326 (Div. Ct.), Dass v. Kay, 2021 ONCA 565, Palmer v. The Queen, [1980] 1 S.C.R. 759

facts:

In August 2015, the appellants retained the respondent, GK, to act for them on the sale of their house in Toronto. There were a number of writs of execution that affected the property and that needed to be removed to complete the sale.
Three of the executions affecting the property were in favour of the respondent, Lawyers' Professional Indemnity Company ("LawPRO"). On the closing of the sale on November 5, 2015, GK caused $13,386.97 to be paid out of the closing proceeds to LawPRO's lawyers to obtain a release of the LawPRO writs of execution.

On April 12, 2018, the appellants commenced an action against the respondents. Their action alleged that GK did not make them aware before closing that LawPRO was demanding payment of legal costs on top of principal and interest and claimed that, in paying $7,427.39 for legal costs and disbursements to obtain the release of the LawPRO writs, he acted without instruction or authority and was professionally negligent. The action also claimed that LawPRO and its lawyer, the respondent JS, engaged in extortion to obtain that payment and have been unjustly enriched by it.

In December 2020, the respondents moved for summary judgment dismissing the action. A ground they relied on was that the action was commenced after the expiry of the limitation period. The appellants did not participate in the Zoom hearing and material they served and filed the day prior was not before the judge.

The summary judgment motion judge dismissed the action. In June 2021, the appellants launched a motion to set aside the summary judgment dismissing their action. They relied on rr. 37.14 and 59.06 of the Rules of Civil Procedure.

The motion to set aside was dismissed by Cameron J., as she was not satisfied that the appellants had reasonably explained their absence from the May 18 hearing, i.e. that they were not "Zoom ready". Second, she found that the appellants' claim lacked arguable merit because it was barred by the limitation period. As for the relief claimed under r. 59.06, the motion judge considered there to be no basis to find the summary judgment had been obtained by fraud.

issues:

(1) Did the motion judge err in finding that the appellants had not reasonably explained their failure to participate in the summary judgment motion?
(2) Did the motion judge err in finding that the appellants' action was barred by the expiry of the limitation period?
(3) Are the appellants entitled to introduce fresh evidence on appeal?

holding:

Appeal dismissed.

reasoning:

(1) and (2) No.

The Court held that it was not necessary to deal with the first issue. The Court held that the second issue dispensed with the appeal, as there was no reversible error in the motion judge's finding that the appellant did not have an arguable claim because the action was statute-barred.

The Court noted that the appellants had received a reporting letter in November of 2015. This letter established the basis for the appellants' claim. The Court agreed with the motion judge's finding that the limitation period began to run in November of 2015 despite the appellants' claims that they did not review the letter until May of 2016.

The Court held that the test for when a limitation period begins to run is when the claim was discovered, which is the earlier of when the appellants actually discovered the claim or when a reasonable person with the abilities and circumstances of the appellants ought to have discovered it. The Court agreed with the motion judge that a reasonable person would have discovered the claim within a few days of closing November 5, 2015.

The Court held that it was open to the motion judge on the record to find that a reasonable person engaged in a real estate sale would have promptly reviewed the information about how the closing funds had been deployed to pay off executions. Accordingly, the Court found no basis to interfere with the motion judge's findings.

(3) No.

The Court also rejected the motion for fresh evidence by the appellants. The Court was not satisfied it met the test in Palmer v. The Queen. Specifically, the Court held that the evidence failed to satisfy the first and fourth elements of the Palmer test. The first element is a due diligence requirement. The Court stated that, if by due diligence, the evidence could have been adduced at the hearing below, the evidence should not generally be admitted. The Court found there was no explanation as to why the evidence could not be provided to the motion judge.

The Court also found that the fourth element of the test was not met, that the evidence could be expected to have affected the result. The Court found that the fresh evidence largely repeated what the appellants had previously noted about the reporting letter.

Children's Aid Society of London and Middlesex v. T.E., 2023 ONCA 149

[Pepall, van Rensburg and Benotto JJ.A.]

Counsel:

J. Gagne, for the appellant, T.M.
R.C. Hammond, for the respondent Children's Aid Society of London and Middlesex
A.J.P. Tremain, for the respondent T.E.
K. Hensel, D. Snider and K. Tsang, for the respondent J.G.
N. Hill-Dolson, for the respondent L.D. (on behalf of Oneida Nation of the Thames)
T. Law, for the respondent O.T.
S. Clarke, for the intervenor Association of Native Child and Family Services Agencies of Ontario

Keywords: Family Law, Child Protection, Custody and Access, First Nations, Customary Care Agreements, Best Interests of the Child, Civil Procedure, Party Status, Kin Caregivers, Foster Parents, Children's Law Reform Act, R.S.O. 1990, c. C.12., Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, section 74(1) and section 79(1), First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13, United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Family Law Rules, O. Reg. 114/99, r. 7(5), M.L. v. Dilico Anishinabek Family Care, 2022 ONCA 240, A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601, Catholic Children's Aid Society of Toronto v. D.L., 2014 ONCJ 587, Durham Children's Aid Society v. J.S., 2022 ONSC 2535, SMCYFS v. D.D., 2021 ONSC 1994, Windsor-Essex Children's Aid Society v. D.L.H., 2015 ONCJ 310, Cadieux v. Cloutier, 2018 ONCA 903

facts:

The appellant is the child's kin caregiver. The respondents are the child's biological mother ("TE"), biological father ("JG"), the child's aunt ("OT"), and the Oneida Nation of the Thames ("Oneida"). The Children's Aid Society of London and Middlesex (the "Society") have been involved with the child since her birth and commenced protection proceedings when she was two months old.

Following a series of unsatisfactory placements, when the child was about six months old, the child was placed with the appellant, who acted as kin caregiver. An order was made granting the appellant temporary custody under the supervision of the Society.
Several months later, the appellant brought a motion seeking to be added as a party to the protection proceedings. At about the same time, JG brought a motion seeking to have the proceedings withdrawn because the respondents were planning to sign a customary care agreement with OT. By the time the motions were heard, the Customary Care Agreement (the "CCA") had been signed. It did not include the appellant, nor did it make any provision for her continued access to, or involvement with, the child.

Relying primarily on the CCA, the motion judge granted JG's motion to dismiss. The motion judge found no technical defects in the CCA. After making this determination, the motion judge dismissed the appellant's motion to be added as a party. The motion judge considered the discretion afforded to the court by rule 7(5) of the Family Law Rules (the "Rules"), wherein the Court "may order that any person who should be a party shall be added as a party". The motion judge concluded that to add the appellant as a party would add considerable time to the proceedings – it would change a resolved proceeding into a protracted, conflicted proceeding.

issues:

(1) Did the motion judge err in refusing to grant party status to the appellant?
(2) Did the motion judge err by determining the motion to dismiss before considering the issue of party status?
(3) Did the motion judge err by dismissing the protection proceedings?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The Court allowed the appellant's motion for party status because the motion judge erred in considering only discretionary party status under rule 7(5) of the Rules. The Court found that the motion judge failed to address the provincial and federal legislation. Accordingly, the Court turned to the Child, Youth and Family Services Act (the "CYFSA"), which defines a "parent" in section 74(1) and sets out the criteria for party status in child protection applications in section 79(1). Although the CYFSA excludes foster parents, the Court found that the motion judge erred in determining that the appellant was a foster parent. The Court found that once the appellant became the child's kin caregiver, she was no longer a foster parent. As such, the appellant, who, at the time of the motion, had "lawful custody of the child", an order for access to the child, and was not a "foster parent", met the definition of "parent" in s.74(1) of the CYFSA and so had a statutory entitlement to party status pursuant to s.79(1).

(2) Yes.

The Court held that the child protection proceeding should not have been dismissed before determining who the parties were. However, since the Court had already determined that the appellant should have been a statutory party and that the CCA had to be evaluated by the Court before dismissing the protection proceeding, the Court found that nothing turned on the order of determination.

(3) Yes.

The Court found that the motion judge erred in dismissing the proceedings by simply basing his decision on the existence of the CCA. Although there is no direct statutory provision for customary care agreements, the Court recognized that they are an important vehicle by which parties resolve issues relating to First Nations, Inuit and Métis children in care. However, the Court clarified that this does not mean their role is eliminated. In every child protection case, the Courts have an obligation to promote the best interests of the child. The Court turned to M.L. v. Dilico Anishinabek Family Care, which stressed the need for all parties to participate in the plan for customary care. In this case, the Court found that the appellant was not involved in the customary care plan, nor was she a party to the CCA. Accordingly, the Court held that the motion judge failed to consider the best interests of the child by not considering the possible effects the child may have face in having their continuity disrupted.

Grimm v. Ontario (Children's Lawyer), 2023 ONCA 161

[Roberts J.A. (Motion Judge)]

Counsel:

J. Rechtshaffen, for the moving party
DS, in person

Keywords: Family law, Parenting, Civil Procedure, Appeals, Security for Costs, Frivolous and Vexatious,Courts of Justice Act, R.S.O. 1990, c. C.43, s. 133(b), Rules of Civil Procedure, r. 61.06, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Schmidt v. Toronto-Dominion Bank (1995), 24 O.R. (3d) 1 (C.A.), R. v. R. (2002), 58 O.R. (3d) 656 (C.A.), A.G.L. v. K.B.D (2009), 93 O.R. (3d) 409 (S.C.), Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884, McNaughton Automotive Limited v. Co-Operators General Insurance Company (2008), 95 O.R. (3d) 365 (C.A.), Brad-Jay Investments Ltd. v. Szijjarto, 218 O.A.C. 315 (2006) (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9

facts:

The parties were married for almost 15 years before they separated on September 30, 2016. They have three children, aged 20, 17 and 14. The underlying dispute involved a successful summary judgment motion in favour of the wife for final decision-making authority and parenting time. The husband appealed the summary judgment decision and sought leave to appeal the costs award. The wife moved for security for costs on the grounds that the appeal was frivolous and vexatious and that the husband had insufficient assets to pay costs in the event that his appeal was unsuccessful.

Except for a handful of unsuccessful attempts at supervised access by the husband, the children have not had contact with their father since September 30, 2016. The children have consistently indicated through the Office of the Children's Lawyer that they did not wish to have any further contact with their father or members of his family.

Prior to the summary judgment hearing, a case conference was held and Pinto J. ordered a timetable for the parties' delivery of materials. The father did not file his materials by the court-ordered deadline. The father's request to file material late was refused. Summary judgment was granted for three reasons: (1) the father did not take steps to bring the protracted litigation to an end, (2) the father did not put his best foot forward and provide evidence to "counter the significant allegations of family violence", and (3) it was in the best interest of the children to bring the litigation to an end.

issues:

Should the Court order that the father pay security for costs of his appeal?

holding:

Motion granted.

reasoning:

Yes.

Security for costs of an appeal can be ordered where there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal or where the justness of the case demands it.
The Court stated that the father's lack of objection to the relief sought by the mother on summary judgment was fatal to his appeal. Further, the lack of objection was never contradicted through affidavit evidence or the notice appeal.

The Court further noticed that the father's grounds of appeal, which centered around parenting time, had no real prospect of success. His grounds of appeal related to the motion judge's refusal to consider his material, which would have negated allegations in the mother's materials. However, he identified no reversible error in the motion judge's exercise of his discretion in light of his factual conclusion that the father failed to abide by the court-ordered deadline for the delivery of his materials. The Court further noted that, based on the motion judge's analysis of the father's submissions and in light of his lack of objection to the relief sought by the mother, it was reasonable to conclude, as the motion judge did, that the materials would not have made any difference to the outcome.

The father also argued that the motion judge failed to consider the children's ages as a determining factor "in access and custody". The Court found no merit to this ground and stated that the age of the children was not determinative and the cases cited by the father did not support his argument.

The Court held that there was also good reason to believe that the ground of appeal regarding the costs award was also frivolous and vexatious. The Court reiterated that the test for leave to appeal a costs award is high. A costs award should be set aside on appeal only if the motion judge made an error in principle or if the costs award was plainly wrong. The father identified no error in the motion judge's discretionary costs order. As the successful party, the mother was entitled to costs. The Court held that the amount awarded appeared fair, reasonable and proportionate.

Lastly, the mother argued that the father has insufficient assets to pay the costs of appeal if unsuccessful on the basis of a 2017 financial statement that was sworn in the family law proceedings. The father argued that this evidence was dated and that he now has sufficient assets. However, if the father disagreed with his own sworn 2017 statement, it was incumbent on him to provide current evidence of his financial circumstances. He failed to do so. Accordingly, the Court held that it was in the interests of justice to order the requested security for costs.

Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

J. Haylock and E. Young, for the appellants
H. Pitch and A. Brunswick, for the respondent

Keywords:Contracts, Interpretation, Real Property, Commercial Leases, Force Majeure, COVID-19 Restrictions, Civil Procedure, Standard of Review, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited, [1976] 1 S.C.R. 580, Windsor-Essex Catholic District School Board v. 2313846 Ontario Limited o/a Central Park Athletics, 2022 ONCA 235

facts:

LAF Canada Company (the "Tenant") leased property from Niagara Falls Shopping Centre Inc. (the "Landlord") to operate a fitness facility (the "Club"). On March 17, 2020, the Ontario government declared a provincial state of emergency due to the COVID-19 pandemic. On March 24, 2020, the government mandated the closure of all non-essential workplaces, including fitness facilities. The resulting restrictions either prevented the Tenant from opening the Club or allowed it to open subject to capacity limits.

In May 2020, the Landlord and the Tenant entered into a rent deferral agreement that provided limited rent relief from April to June 2020. Pursuant to that agreement, 50% of the base rent was forgiven and 25% was deferred. After the rent deferral agreement expired, the Tenant paid rent until the end of 2020, even though the Club was permitted to re-open only with limited capacity. When the Ontario government re-imposed the lockdown on December 26, 2020, the Tenant refused to continue paying rent. The Landlord responded by bringing an action for all unpaid rent and various associated charges. The Tenant defended, contending that it was under no legal obligation to pay rent during the government-mandated closures due to the Force Majeure Clause. The Tenant also counterclaimed for a declaration that: (1) during periods of government-mandated closure of the Club, it was relieved of the obligation to pay rent; and (2) during periods of government-mandated capacity limits for the Club, its obligation to pay rent was reduced in proportion to those restrictions.

The motion judge accepted that the government lockdowns were "restrictive laws" and, therefore, the Force Majeure Clause was triggered. However, she held that the Force Majeure Clause did not require the lease to be extended for a period equivalent to the closures because it was intended to deal with only a time limited event in the lease, such as a maintenance repair. Furthermore, the motion judge accepted the Landlord's argument that the Tenant was not relieved of its obligation to pay rent during those same periods because the Force Majeure Clause stated that failures to perform that could be cured by the payment of money were not Force Majeure Events, and the failure to pay rent could be cured through payment.

issues:

(1) What is the appropriate standard of review regarding the motion judge's interpretation of the Force Majeure Clause?
(2) Did the motion judge make an extricable legal error in interpreting the Force Majeure Clause?
(3) Did the motion judge err in determining that the Tenant was required to pay rent during the excused period?

holding:

Appeal allowed, in part.

reasoning:

(1) The deferential standard was applied.
The Tenant argued that the standard of review of the motion judge's interpretation of the Force Majeure Clause was correctness because the lease was a standard form contract. The Landlord disagreed, submitting that there was no evidence that the lease was offered by either party on a "take it or leave it" basis. Rather, the Landlord argued that the standard of review was palpable and overriding error: Sattva Capital Corp. v. Creston Moly Corp.

The Court disagreed with the standard of review proposed by both parties. It noted that the interpretation of a non-standard form contract is a question of mixed fact and law, which attracted the deferential standard of review. Absent an extricable legal or a palpable and overriding error, appellate intervention was not warranted.

(2) Yes.

The motion judge concluded that the Force Majeure Clause exempted the Landlord from performance for the periods of delay caused by the closures. The Tenant accepted that the delays in performance by the Landlord were excused for the delay periods but contended that the Force Majeure Clause required the lease to be extended for an equivalent period because it stated that "performance of such act shall be excused for the period of delay caused by the Force Majeure Event and the period for the performance of such act shall be extended for an equivalent period (the "Excusing Provision"). The motion judge rejected this contention, saying such a result was "commercially absurd" and the extension referred to in the Excusing Provision was intended to deal with a time limited event.

The Court held that the motion judge committed two extricable legal errors in interpreting the Force Majeure Clause. First, she failed to give the words in the Excusing Provision their ordinary and grammatical meaning. She interpreted the word "excused" as "exempted" and ignored the part of the Excusing Provision which sets out how the excused performance is to be dealt with. There was nothing in the Force Majeure Clause or the Excusing Provision that exempted the Landlord from its obligation to perform. Rather, the Excusing Provision expressly provided for what was to happen if a party was delayed, hindered in, or prevented from performing a required act under the lease as a result of a Force Majeure Event.

Second, the motion judge erred in limiting the operation of the Excusing Provision to "time limited events". The Court found nothing in the Force Majeure Clause that would support such limitation. To the contrary, it stated that performance was to be excused for an amount of time equivalent to the amount of time where the Force Majeure Clause was in operation. By limiting the operation of the Excusing Provision to obligations only of a time-limited nature, the motion judge both ignored the plain wording of the Force Majeure Clause and imposed a limitation contrary to the parties' agreement as expressed therein.

(3) No.

The Force Majeure Clause operated to excuse the Landlord's failure to provide the Tenant with the Premises during the government-mandated closure periods and extend the lease by the amount of time that the Force Majeure Event was in effect.

The Tenant argued that this Force Majeure Clause also operated to excuse it from its obligation to pay rent during the excused period. The Court agreed with the motion judge that the Tenant was obligated to pay rent during this time period. While the Tenant's ability to pay rent was hindered, this was not because of a Force Majeure Event. The Force Majeure Clause excluded financial inability to pay as a Force Majeure Event. The Tenant was, in fact, unable to pay because it refrained from charging its members membership fees during the lockdown. However, the Court clarified that the Tenant was not obligated to pay rent during the extension period, having already been required to pay it during the closure periods.

SHORT CIVIL DECISIONS

Rivas v. Anobile, 2023 ONCA 156

[Roberts, Nordheimer and Favreau JJ.A.]

Counsel:

D. LaFramboise, for the appellant
D. Saverino, for the respondent

Keywords: Family Law, Matrimonial Home, Trust Property, Fraud, Breach of Fiduciary Duty

908593 Ontario Limited v. Atradius, 2023 ONCA 156

[Roberts, Nordheimer and Favreau JJ.A.]

Counsel:

D. M. O'Leary and M. Muñoz, for the appellant
S. Sasso, for the respondent

Keywords: Bankruptcy and Insolvency, Receiverships, Contracts, Insurance, Interpretation, Standard of Review, Palpable and Overriding Error, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA 908, Apps v. Grouse Mountain Resorts Ltd., 2020 BCCA 78, Crosby (Estate) v. Native Fishing Assoc., 2001 BCCA 118, Chilton v. Co-Operators General Insurance Co. (1997), 32 O.R. (3d) 161 (C.A.)

Tiwari v. Singh, 2023 ONCA 163

[Roberts, Nordheimer and Favreau JJ.A.]

Counsel:

A. S. Nagpal, for the appellants
R. Datt, for the respondent

Keywords:Real Property, Mortgage,  Civil Procedure, Summary Judgment, Evidence, Admissibility, Hearsay, Documents, Authenticity Rules of Civil Procedure, r. 20.02(1), Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200

Buffone v. Sokil, 2023 ONCA 168

[van Rensburg J.A. (Motion Judge)]

Counsel:

BLS, appearing in person
C. S., for the responding party BMO Trust Company, in its capacity as Estate Trustee During Litigation of the Estate of EB
WS, appearing in person
R. Jennings, for the responding party EAB

Keywords: Wills and Estates, Civil Procedure, Contempt, Appeals, Stay Pending Appeal, Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, Belton v. Spencer, 2020 ONCA 623

Hill v. Cambridge (City), ONCA 2023 164

[Roberts J.A. (Motion Judge)]

Counsel:

SH, in person
J.H. Bennett, for the City of Cambridge and the Region of Waterloo, KH and SM
R. Rammaya, for J. Lem, Director of Land Titles
V. Crystal, for the Assessment Review Board
N. Roberts and R. Shah, for Gateway Business Campus, Suncor Energy Inc. and AH
P. Betts and L. Onayemi, for Sun Life Assurance Company of Canada
P. Le Vay, for the Law Society of Ontario and Estate of GV
S.D.E. Matheson, for the Estate of EW
E.C. Durst, for the respondents, 4928548 Ontario Limited, SP and Poladian Holdings Inc.
A. Amster, for the Municipal Property Assessment Corporation

Keywords: Civil Procedure, Vexatious Litigants, Appeals, Extension of Time, Rules of Civil Procedure, r. 2.1.01(1), Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208

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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