28 September 2021

Court Of Appeal Summaries (September 20 – 24, 2021)

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Following are this week's summaries of the Court of Appeal for Ontario for the week of September 20, 2021. The theme this week was family law.
Canada Litigation, Mediation & Arbitration
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Following are this week's summaries of the Court of Appeal for Ontario for the week of September 20, 2021. The theme this week was family law.

Congratulations to our own Ryan Kniznik for his success in Muraven v. Muraven. In that case, the Court dismissed an appeal addressing property, child support and prejudgment interest issues.

In Meloche v. Meloche, the Court was asked to answer the following question: Where a retired member spouse's pension payments are divided at source for family law purposes, can the parties agree (or can a court order or can an arbitrator award) that payment sharing continue to the non-member spouse's estate for the balance of the retired member spouse's life? The motion judge had answered that question in the negative. However, after an exhaustive review of the relevant provisions of the Pension Benefits Act and the Family Law Act, the Court set aside that decision and answer the question in the affirmative.

In Lalonde v. Agha, the Court dismissed the appellant's appeal from the trial judge's order that the parties' religious marriage in Tennessee that was not formally valid in that state because no marriage licence was obtained, was nonetheless deemed valid in Ontario pursuant to s. 31 of the Marriage Act, and therefore that the parties were "spouses" under the Family Law Act.

In Smith v. Kane, the Court upheld the trial judge's decision that there was no breach of the standard of care of a family doctor in failing to diagnose a rare condition that resulted in the loss of the patient's leg that could have been avoided if there had been an earlier diagnosis.

In Johnson v Ontario, the Court determined that a decision to deny an extension of time to a class member to opt out of a class proceeding so that the class member could proceed with his own individual action was a final order, not an interlocutory order. The Court was of the view that the opt out right was of such importance, that the denial of that right amounted to a decision that affected substantive legal rights, and not merely procedural rights. The order dismissing the class member's motion for an extension of time to opt out of the class proceeding was therefore characterized as a final order. Ontario's motion to quash the appeal on the basis that the order was interlocutory and therefore before the wrong court was dismissed.

Lastly, for our readers who have not yet heard about it, I would like to introduce them to a new publication, Civil Procedure & Practice in Ontario (CPPO). The CPPO is a new free online resource jointly published by the University of Windsor and CanLII. As most of our readers probably know, CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School.

CPPO will serve as a guide to Ontario's Rules of Civil ProcedureCourts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

Together with my colleague, Natasha Rambaran, I had the privileged and honour to contribute two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference). I would like to thank Professor Semple for inviting me to participate in this very worthwhile project.

I would encourage all of our readers to consult CPPO in their daily practice, and to spread the word among colleagues. In addition, the authors and Professor Semple would welcome any feedback and ideas for improvement, as the resource will not be static. The intention is for CPPO to be continually updated and refined.

A. Table of Contents

Civil Decisions

a. Smith v. Kane, 2021 ONCA 634

Keywords:  Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Contributory Negligence, Expert Evidence, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Kaiman v. Graham, 2009 ONCA 77, Whitby (Town) v. G&G, 2020 ONCA 654, Samms Estate v. Moolla, 2019 ONCA 220, Nattrass v. Weber, 2010 ABCA 64, McCann v. Hyndman, 2004 ABCA 191, Housen v. Nikolaisen, 2002 SCC 33, Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (S.C.), Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, Rowlands v. Wright, 2009 ONCA 492, Gent and Gent v. Wilson, [1956] O.R. 257 (C.A.), Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Carswell, 2017)

b. Blacklock v. Tkacz, 2021 ONCA 630

Keywords:  Family Law, Motion, Estate, Deceased, Retroactive Child Support, Decree Nisi, Costs, Divorce ActFamily Law ActFamily Law Rules, O. Reg. 114/99, Katz v. Katz, 2014 ONCA 606

c. Meloche v. Meloche, 2021 ONCA 640

Keywords:  Family Law, Motion, Question of Law, Divorce, Equalization, Net Family Property, Pension, Estate, Standard of Review, Correctness, Statutory Interpretation, Costs, Family Law Rules, O. Reg. 114/99, Pension Benefits Act, R.S.O. 1990, c. P.8, Family Law Act, R.S.O. 1990, Family Law Matters, O. Reg. 287/11, Divorce ActColucci v. Colucci, 2021 SCC 24, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336, 148 D.L.R. (4th) 1, State Farm Mutual Automobile Insurance Company v. Old Republic Insurance Company of CanadaS.H. v. D.H., 2019 ONCA 454, 146 O.R. (3d) 625, Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, Kendra D.M.G. Coats et al., Ontario Family Law Practice 2020, Volume 2 (Toronto: LexisNexis Canada, 2019)

d.  Johnson v. Ontario, 2021 ONCA 650

Keywords:  Torts, Negligence, Breach of Charter Rights, Crown Liability, Civil Procedure, Class Proceedings, Opting Out, Extension of Time, Appeals, Jurisdiction, Final or Interlocutory, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 9, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1), Canadian Charter of Rights and Freedoms, s. 24(1), Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97, Skunk v. Ketash, 2016 ONCA 841, Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.), 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2012 ONSC 4317, rev'd on other grounds 2013 ONCA 279, Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.), Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, Webb v. K-Mart Canada Ltd. (1999), 45 O.R. (3d) 389, Workmen Optometry v. Aviva Insurance, 2021 ONSC 3843, Dumoulin v. Ontario (Ontario Realty Corp.), [2004] O.J. No. 2778, M.J. Jones Inc. v. Kingsway General Insurance Co. (2003), 233 D.L.R. (4th) 285 (Ont. C.A.), Smith Estate v. National Money Mart Company, 2008 ONCA 746, leave to appeal refused, [2008] S.C.C.A. No. 535, Fontaine v. Canada (Attorney General), 2018 ONCA 832, Locking v. Armtec Infrastructure Inc., 2012 ONCA 774, Hendrickson v. Kallio, [1932] 4 D.L.R. 580 (Ont. C.A.), Sun Life Assurance Co. of Canada v. York Ridge Developments Ltd. (1998), 116 O.A.C. 103, Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2d ed. (Markham: Lexis-Nexis Canada Inc., 2014), Kennedy, Gerard, Civil Appeals in Ontario: How the Interlocutory/Final Distinction Became So Complicated and the Case for a Simple Solution?, (2020) 45:2 Queen's L.J. 243

e.  Skinner v. Skinner, 2021 ONCA 658

Keywords:  Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Arrears, Imputing Income, Section 7 Extraordinary Expenses, Child of Marriage, Spousal Support Advisory Guidelines, Willick v. Willick, [1994] 3 S.C.R. 670, Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, Rosenberg v. Rosenberg (2003), 42 R.F.L. (5th) 440 (Ont. S.C.), Hickey v. Hickey, [1999] 2 S.C.R. 518

f. Lalonde v. Agha, 2021 ONCA 651

Keywords:  Family Law, Marriage, Validation, Definitition of Spouse, Equalization of Net Family Property, Marriage Act, R.S.O. 1990, c. M.3, s. 4 and 31, Family Law Act, R.S.O. 1990, c. F.3, s. 1(1), Tennessee Code Annotated, The Marriage Act, 1896, S.O. 1896, c. 39, s. 29, Alspector v. Alspector (1957), 9 D.L.R. (2d) (Ont. C.A.), Debora v. Debora (1999), 167 D.L.R. (4th) 759 (Ont. C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Berthiaume v. Dastous, [1930] 1 D.L.R. 849 (P.C.), Brook v. Brook (1861), 11 E.R. 703 (H.L.), Porteous v. Dorn et al., [1975] 2 S.C.R. 37, Powell v. Cockburn, [1977] 2 S.C.R. 218, Peppiatt v. Peppiatt (1916), 30 D.L.R. 1 (Ont. C.A.), Kerr v. Kerr and Ontario (Attorney General), [1934] S.C.R. 72, Clause v. Clause (1956), 5 D.L.R. (2d) 286, Breakey v. Breakey (1846), 2 U.C.Q.B. 349, Smith v. Waghorn, 2012 ONSC 496, Dutch v. Dutch (1977), 1 R.F.L. (2d) 177 (Ont. Co. Ct.), Harris v. Godkewitsch (1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), Kanafani v. Abdalla, 2010 ONSC 3651, Chhokar v. Bains, 2012 ONSC 6602, Aden v. Mohamud, 2019 ONSC 6493, Moza and Thusu (Re), 2021 ONSC 1552, Friedman v. Smookler, [1964] 1 O.R. 577, Ayoub v. Osman, 2006 CanLII 9309 (Ont. S.C.), Isse v. Said, 2012 ONSC 1829, Jama v. Basdeo, 2020 ONSC 2922, Walker, Janet, Castel & Walker: Canadian Conflict of Laws, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005) vol. 2, Payne, Julien D. and Marilyn A., Canadian Family Law, 8th ed. (Toronto: Irwin Law, 2020) H.R. Hahlo, Nullity of Marriage in Canada: With A Sideways Glance At Concubinage And Its Legal Consequences, (Toronto: Butterworth & Co. (Canada), 1979), Riddell, William Renwick, The Law of Marriage in Upper Canada, (1921) 2 Can Historical Rev 226

Short Civil Decisions

g. Public Guardian and Trustee v. Zammit, 2021 ONCA 648

Keywords:  Wills and Estates, Powers of Attorney, Public Guardian and Trustee, Substitute Decisions Act, 1992, S.O. 1992, c.30, s.32(1) and s.38(1), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 38 O.R. (3d) 448 (C.A.)

h. 31 Kingsbury Inc v. Delta Elevator Company Limited, 2021 ONCA 656

Keywords:  Civil Procedure, Appeals, Abandonment, Costs

i. Maynard v. Mississippi Mills (Municipality), 2021 ONCA 639

Keywords:  Municipal Law, By-Laws, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Jurisdiction, Ontario Land Tribunal Act, S.O. 2021, Local Land Appeal Tribunal Act, S.O. 2017, Country Pork Ltd. v. Ashfield (Township), 60 O.R. (3d) 529, Grabe v. Ottawa (City), 2019 CanLII 107083, Rules of Civil Procedure, Rule 21.01(1)(b)

j. College of Massage Therapists of Ontario v Schoelly, 2021 ONCA 655

Keywords:  Civil Procedure, Appeals, Mootness

k. Markham (City) v. AIG Insurance Company of Canada, 2021 ONCA 649

Keywords:  Civil Procedure, Appeals, Costs

l. Jonas v Akwiwu, 2021 ONCA 641

Keywords:  Child Support, Retroactive Variation, Effective Date of Variation, Material Change in Circumstances, Delay in Application, Fresh Evidence on Appeal, Palmer Test, R. v. Palmer, [1980] 1 S.C.R. 759

m. Hanna & Hamilton Construction Co. Ltd v. Robertson, 2021 ONCA 660

Keywords:  Bankruptcy and Insolvency, Debt Surviving Bankruptcy, Civil Procedure, Procedural and Natural Justice, Reasons, Appeals, Lack of Reasons, Appeal Allowed, R. v. Sheppard, [2002] 1 SCR 869

n. Diamond v. Berman], 2021 ONCA 653

Keywords:  Family law, Spousal Support, Variation, Spousal Support Advisory Guidelines

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