Courtroom Of Attraction Summaries (December 7 – December 11, 2020) – Litigation, Mediation & Arbitration

By Last updated Dec 21, 2020

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Good evening.

Please find below our summaries of the civil decisions of the
Court of Appeal for the week of December 7, 2020. We have also
summarized R. v. Irwin, a provincial offences decision
relating to Building Code violations, as it deals with the
rule prohibiting collateral attacks of orders, and is therefore a
decision applicable in the civil and administrative law
context.

Other topics covered this week included agreements of purchase
and sale of land, jurisdiction/forum non conveniens,
reasonable apprehension of bias, occupier’s liability and
family law.

On another note, please mark down April 27, 2021, from
5:30-7:45pm in your calendars for our fifth annual “Top
Appeals” CLE, which will take place via Zoom again. We are in
the process of reviewing and deciding on the top appeals of the
year, so if anyone has any suggestions, please let us know. In the
meantime, please register for the program by clicking here,
which will take you to the OBA’s website.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

McMurter v.
McMurter, 2020 ONCA 772

Keywords: Family Law, Spousal Support,
Security, Civil Procedure, Procedural and Natural Justice,
Reasonable Apprehension of Bias, Divorce Act R.S.C. 1985,
c. 3, (2nd Supp.), ss. 15.2, 17(3), Indian Act, R.S.C.,
1985, c. I-5, R. v. S. (R.D.), [1997] 3 S.C.R. 484,
D.G. v. A.F., 2015 ONCA 290

Cosentino v.
Cosentino, 2020 ONCA 775

Keywords: Family Law, Support, Orders,
Variation, Material Change in Circumstances, Willick v.
Willick, [1994] 3 S.C.R. 670

Onley v. Whitby
(Town), 2020 ONCA 774

Keywords: Torts, Negligence, Occupiers’
Liability, Standard of Care, Reasonable Measures, Expert Evidence,
Occupiers’ Liability Act, ss. 3(1), Drummond v
Cadillac Fairview Corporation Limited, 2019 ONCA 0447,
Tondat v Hudson’s Bay Company, 2019 ONCA 0302

GIAO Consultants Ltd. v. 7779534 Canada
Inc., 2020 ONCA 778

Keywords: Civil Procedure, Conflict of Laws,
Jurisdiction, Forum Non Conveniens, Standard of Review,
Club Resorts Ltd. v. Van Breda, 2012 SCC 1, Young v.
Tyco International of Canada Ltd., 2008 ONCA 709,
Haaretz.com v. Goldhar, 2018 SCC 28

Malik v. Attia,
2020 ONCA 787

Keywords: Contracts, Real Property, Agreements
of Purchase and Sale of Land, Subdivision Control, Deposits,
Forfeiture, Civil Procedure, Partial Summary Judgment, Planning
Act, R.S.O. 1990, c. P.13, ss. 50(3), 50(15), Baker v.
Nero (1979), 23 O.R. (2d) 646 (H.C.), Baywood Homes
Partnership v. Haditaghi, 2014 ONCA 450, Healthy Lifestyle
Medical Group Inc. v. Chand Morningside Plaza Inc., 2019 ONCA
6, Komorowski v. Van Weel (1993), 12 O.R. (3d) 444 (Gen.
Div.), Lapolla v. The Estate of John Bostock, 2017 ONSC
7448, Smith v. Tellier (1974), 47 D.L.R. (3d) 342 (Ont.
C.A.), rev’d on other grounds [1976] 2 S.C.R. 255, Zender
v. Ball (1975), 51 D.L.R. (3d) 499 (Ont. H.C.), 2287913
Ontario Inc. v. Blue Falls Manufacturing Ltd., 2015 ONSC 7982,
Hryniak v. Mauldin, 2014 SCC 7, Butera v. Chown,
Cairns LLP, 2017 ONCA 783, Service Mold + Aerospace Inc.
v. Khalaf, 2019 ONCA 369, Weirfoulds LLP, Ontario Planning
Practice: Annotated Statutes and Regulations (Toronto: Thomson
Reuters, 2019), at PA 1, s. 50(15); Practical Law Canada,
“Simultaneous Conveyancing When Land in Both Registry and
Land Titles” (Thomson Reuters, October 2020), Ian Rogers
& Alison Butler, Canadian Law of Planning and Zoning,
2nd ed. (Toronto: Thomson Reuters, 2019)

Dhatt v. Beer,
2020 ONCA 799

Keywords: Civil Procedure, Appeals, Expediting
Appeal, Intervention, Contracts, Real Property, Agreements of
Purchase and Sale of Land, Remedies, Specific Performance

Short Civil Decisions

Sparr v. Downing, 2020 ONCA
793

Keywords: Family Law, Child Support, Financial
Disclosure, Family Law Rules, O. Reg. 114/99, Roberts
v. Roberts, 2015 ONCA 450, Manchanda v. Thethi, 2016
ONCA 909, leave to appeal refused, [2017] S.C.C.A. No. 29,
Peerenboom v. Peerenboom, 2020 ONCA 240,

614128 Ontario Ltd. (Trisan
Construction) v. Toronto (City), 2020 ONCA
803

Keywords: Construction Law, Trust Obligations,
Statutory Holdback, Settlements, Construction Lien Act,
R.S.O. 1990, c. C.30

Bonus Provincial Offences Decision

R. v. Irwin
, 2020 ONCA 776

Keywords: Provincial Offences, Building Code
Violations, Administrative Law, Orders, Collateral Attack,
Building Code Act, ss. 1, ss. 8(1), ss. 12(2), ss. 25, ss.
36(1), R v Consolidated Maybrun Mines Ltd., [1998] 1 SCR
706, Wilson v The Queen, [1983] 2 SCR 594, R v
Bird, 2019 SCC 7, Garland v Consumers’ Gas Co.,
2004 SCC 25, Amtim Capital Inc. v Appliance Recycling Centers
of America, 2014 ONCA 62, R v Domm, (1996) 31 OR (3d)
540 (CA), Canada (Attorney General) v Telezone Inc., 2010
SCC 62, Toronto (City) v CUPE, Local 79, 203 SCC 63,
864503 Alberta Inc. v Genco Place Properties Ltd., 2019
ABCA 80

CIVIL DECISIONS

McMurter v. McMurter, 2020 ONCA
772

[Feldman, Simmons and Harvison Young JJ.A]

Counsel:

K. A. M., acting in person

A. Rogerson, for the appellant

Keywords: Family Law, Spousal Support,
Security, Civil Procedure, Procedural and Natural Justice,
Reasonable Apprehension of Bias, Divorce Act R.S.C. 1985,
c. 3, (2nd Supp.), ss. 15.2, 17(3), Indian Act,
R.S.C., 1985, c. I-5, R. v. S. (R.D.), [1997] 3 S.C.R.
484, D.G. v. A.F., 2015 ONCA 290

facts:

The appellant, former husband, appealed from an order dated
December 28, 2018, in which the motion judge dismissed the
appellant’s motion requesting that she recuse herself from
continuing to preside in this proceeding based on a reasonable
apprehension of bias.

In the same order, the motion judge dismissed as moot a motion
by the respondent, former wife, seeking to prevent the appellant
from selling one of four properties (the “Bell’s
Side Road property“) over which the
wife had an order for security for future spousal support (the
“security order“). As of the date of the
motion, the appellant no longer had a buyer for the property. The
motion judge also dismissed the respondent’s motion requesting
that the appellant transfer to her the four properties to which the
security order applied and the appellant’s motion to remove the
security order from all four properties.

The motion judge made the security order following the trial of
a 2016 change motion brought by the appellant in which he sought to
terminate spousal support payable to the respondent. The motion
judge observed at the time of making the order for security, that
the order was subject to the Indian Act, which requires
approval of the relevant band and the Minister of Indian Affairs
and Northern Development. She found that the bases for the security
order included the appellant’s past history of refusing to pay
support when he had the ability to do so and lying to the court
about his income. Among other things, in her 2016 change motion
order, the motion judge dismissed the appellant’s request to
terminate spousal support; granted the respondent’s request for
the security order under the Divorce Act, and seized
herself of issues arising from the change motion order.

In her reasons for the 2016 change motion order, the motion
judge concluded that the appellant failed to make full disclosure,
that certain disclosure he did provide was deliberately misleading
and that certain values he put forward were deliberately false.

The appellant appealed and sought an order for a new hearing of
the underlying motions.

issues:

Did the motion judge err in failing
to conclude that various adverse findings she made concerning the
appellant in her reasons for the 2016 change motion order gave rise
to a reasonable apprehension of bias?

holding:

Appeal dismissed.

reasoning:

No, the Court saw no basis on which to interfere with the motion
judge’s decision not to recuse herself. Judges are presumed to
be impartial and the test for apprehension of bias establishes a
high threshold. It requires that any apprehension of bias be a
reasonable one, held by reasonable and right-minded persons. It
asks what would an informed person, viewing the matter
realistically and practically – and having thought the matter
through – conclude. Would he or she think that it is more
likely than not that the decision-maker, whether consciously or
unconsciously, would not decide fairly?

Here, the Court found that the motion judge’s 2016 change
motion findings were neither unnecessary nor abusive. They were
factual findings made following the change motion trial that were
necessary to the proper adjudication of the issues in that
proceeding. Significantly, the findings stood unchallenged in the
ongoing proceedings between the parties, as the appellant did not
pursue his appeal in 2016 and ultimately it was dismissed for
delay.

Additionally, the Court found that the appellant did not raise
an allegation of bias in his notice of appeal of the 2016 change
motion order; nor did he raise the issue of bias on the initial
argument of the security order motions. The Court held that the
motion judge’s finding that the motivation for the recusal
motion was the appellant’s disagreement with the judge’s
May 7, 2018 order was supported by the record.

In any event, the Court was not satisfied that the motion
judge’s adverse credibility findings in her 2016 change motion
reasons, standing alone, compromised her impartiality in relation
to the issues before her on the 2018 security order motions. The
main issue was whether the remaining security would be sufficient
if the appellant was permitted to dispose of the Bell’s Side
Road property. Prior to the recusal motion, the motion judge had
already determined that the remaining security would be
sufficient.

The Court also observed that, particularly in family law
proceedings, where, as here, parties may appear in court
repeatedly, judicial continuity is recognized as promoting both
efficiency and fairness. Here, the motion judge’s knowledge of
the history of the matter not only saved judicial resources, it
contributed to her ability to determine the appropriate outcome at
both the March, April, and October 2018 hearings. She understood
the basis for the security order and how it was calculated.
Although adverse credibility findings may conceivably give rise to
a reasonable apprehension of bias in the specific circumstances of
a particular case, the Court was satisfied that the motion
judge’s 2016 change motion findings created no such
apprehension in relation to the 2018 security order motions.

Cosentino v. Cosentino, 2020 ONCA
775

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

G.S. Campbell, for the appellant

H.M. Evans, for the respondent

Keywords: Family Law, Support, Orders,
Variation, Material Change in Circumstances, Willick v.
Willick, [1994] 3 S.C.R. 670

facts:

The respondent commenced divorce proceedings from the appellant
in 2013. Following contentious proceedings, Douglas J. fixed child
support at $1,652 monthly and spousal support at $1,121
monthly.

The appellant appealed these orders, which was ultimately
dismissed due to the appellant’s failure to make the interim
child and spousal support payments ordered, in addition to not
perfecting the appeal on a timely basis.

Four days following the dismissal of the appeal, the appellant
brought a motion to change the orders made by Douglas J., based on
a material change in circumstances. The claim for a change in
circumstances focused on the appellant’s alleged inability to
continue to work in his long-time employment as an insurance
broker, as well as a sharp deterioration in his health.

The motion judge determined that although the appellant’s
income had decreased significantly since Douglas J.’s order in
2016, the appellant was the author of his own misfortune due to his
initiative to become “intentionally underemployed”,
rather than due to the deterioration in his health. As such, the
motion was dismissed.

issues:

(1) Did the motion judge misconstrue the law on a change of
circumstances?

(2) Did the motion judge err in not taking sufficient account of
his age and retirement in reaching his decision?

holding:

Appeal dismissed.

reasoning:

(1) Did the motion judge misconstrue the law on a change of
circumstances?

No. In Willick v. Willick, [1994] 3 S.C.R. 670, the
Court held that a “material change of circumstances”
requires a change that, if known at the time, would have resulted
in different terms. Related to this point, if the matter which is
relied on as constituting a “change” was known at the
relevant time, it cannot be relied on as the basis for the
variation.

In support of his motion for a change in the order, the
appellant submitted numerous notes from physicians,
psychotherapists and psychiatrists. However, this evidence
significantly related to the appellant’s condition dating back
prior to the hearing before Douglas J. in 2016. Further, none of
this evidence was led at the hearing.

As a result, the Court found that as per the law in
Willick regarding matters that existed at the relevant
time, in addition to the principle that orders in family law should
not be departed from lightly, the appellant did not meet the
requisite test.

As an aside, the Court also noted that the appellant commenced
the motion to change only four days after the initial appeal was
dismissed, and only after other attempts to reduce support payments
were unsuccessful.

(2) Did the motion judge err in not taking sufficient account of
his age and retirement in reaching his decision?

No. Once again, the Court referred to the chronology of events.
There was nothing in the record in the matter before Douglas J.,
nor in the subsequent appeal, that raised the issue of the
appellant’s age or imminent retirement. As a result, the Court
saw no basis to interfere with the motion judge’s conclusion
that the appellant is “intentionally underemployed” and
that his underemployment “is a direct result of the decisions
he made which I find were made intentionally to avoid or reduce the
payments of child and spousal support.”

Onley v. Whitby (Town), 2020 ONCA
774

[Doherty, Roberts and Harvison Young JJ.A.]

Counsel:

D.A. Morin and P.M. Reinitzer, for the appellants

C.M.K. Loopstra and P.E.F. Martin, for the respondent

Keywords:Torts, Negligence, Occupiers’
Liability, Standard of Care, Reasonable Measures, Expert Evidence,
Occupiers’ Liability Act, ss. 3(1), Drummond v
Cadillac Fairview Corporation Limited, 2019 ONCA 0447,
Tondat v Hudson’s Bay Company, 2019 ONCA 0302

facts:

The appellant was electrocuted while playing on a soccer field
owned by the respondents. A few months before the incident, a light
pole on the soccer field was struck by lightning, causing damage to
the internal wiring which in turn caused current to leak into the
ground nearby. When the appellant was playing on the field, this
current entered her body and electrocuted her. The appellant sued
the respondent under the Occupiers’ Liability Act
(“OLA”).

At trial, the judge found that while the possibility of the pole
being damaged by lightning was foreseeable, the subsequent
electrocution from playing on the ground was not. The trial judge
also held that the respondent had met its standard of care under
the OLA, namely through a safety agreement with Electrical
Safety Authority (“ESA”), annual inspections by the ESA
and compliance advice from the ESA. The appellants suggested at
trial that the respondents should have adopted additional measures
(most importantly the use of ‘pen testers’ to test the
ground for stray voltage), which if they had been adopted, would
have prevented the incident. They also submitted that the
respondent was in breach of its safety agreement. The trial judge
rejected these submissions, holding that they went well beyond the
statutory minimums required under the OLA and that the
respondent was not in breach of its safety agreement.

issues:

Did the trial judge err in their
conclusion as to when the lightning strike occurred, damaging the
light pole?
Did the trial judge err in allowing
the respondent’s expert to testify on the efficacy of pen
testers, even though the expert’s report did not include such
opinion?
Did the trial judge err in rejecting
the pen testers as a reasonable measure that could have prevented
the incident?

holding:

Appeal dismissed.

reasoning:

Section 3(1) of the OLA requires occupiers to
“take such care as in all the circumstances of the case is
reasonable to see that persons entering on the premises, and the
property brought on the premises by those persons are reasonably
safe while on the premises.” The Court of Appeal confirmed
that this does not require perfection, and that reasonability is
fact dependent.

(1) No.

The main issue on this ground of appeal was the date when the
damage to the pole was caused. If it had been caused prior to the
last inspection, the respondent may have been liable for not
discovering the damage during the inspection. However, the trial
judge found that it had occurred during a storm only a few months
earlier, such that the only alternative measure proposed by the
appellant that could have been of assistance were the pen testers.
The Court of Appeal found that the trial judge carefully considered
the factual record and saw no reason to overturn this finding of
fact.

(2) No.

The issue of efficacy of pen testers was raised by the
appellant’s expert witness during examination in chief. The
respondent’s expert’s testimony was given in response to
this. The respondent expert testified that the pen testers
suggested by the appellant would not be useful as they would not
differentiate between normal electricity running through wires in
the ground or electricity leaking from those wires. The appellants
submitted on appeal that this testimony should not have been
allowed because it was not in the experts’ report. The Court of
Appeal found that the trial judge properly exercised their
discretion in admitting the evidence because there was no prejudice
to the appellants. They were given the opportunity to cross-examine
the expert, and the trial judge offered the appellants an
opportunity to adjourn to prepare reply evidence. The appellants
chose not to do this. Since the evidence was raised in reply to an
issue raised by the appellants and there was no prejudice, the
Court of Appeal held there was no error in law committed.

(3) No.

The Court of Appeal found no error in the trial judge’s
holding that the pen testers were not a reasonable measure. The
trial judge considered the conflicting evidence of the two experts
and found the evidence of the respondent’s expert more
convincing. This finding was open to the trial judge based on the
record, and he gave detailed reasons for his decision to do so.

(4) Other Issues

While the Court of Appeal decided the appeal at the standard of
care stage of the analysis, it also briefly addressed the
appellant’s arguments on errors in the trial judge’s
assessment of foreseeability and damages. The Court made it clear
that it did not endorse the analysis or conclusion of the trial
judge. It simply did not consider those other issues, as the
standard of care issue was determinative.

The appellants also sought leave to appeal the trial judge’s
cost award against them. Leave was granted, but the costs appeal
was dismissed as the trial judge’s assessment was fair and
reasonable.

GIAO Consultants Ltd. v. 7779534 Canada
Inc., 2020 ONCA 778

[MacPherson, Zarnett and Jamal JJ.A.]

Counsel:

S. Bennett, for the appellants

A. G. Munera and B. Mendiola, for the respondent

facts:

The respondent, GIAO Consultants Ltd.
(“GIAO“) issued a statement of
claim against the appellants and others for breach of contract,
negligence, intentional misrepresentation, breach of trust and/or
fiduciary duty, and civil conspiracy.

The appellant did not submit to the jurisdiction of Ontario
courts and brought a motion to challenge the jurisdiction of the
Ontario courts, or, in the alternative, to seek a declaration that
Ontario was forum non conveniens to determine the
proceeding. In the contract between the appellants and respondent,
there was a clause that provided the governing law would be the
laws of the Province of Quebec. The motion judge rejected both
components of the appellants’ claim. She found that Ontario
courts had jurisdiction simpliciter to hear and determine
the claim and that Ontario courts were not forum non
conveniens for the appellants’ claim.

issues:

Did the motion judge err in finding
that the Ontario courts have jurisdiction over the action?
Did the motion judge err in finding
that Ontario was forum conveniens for the action?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge did nothing more than acknowledge the
limits of what was available to her and upon which she was required
to make her determination based on the Van Breda factors.
The fact that there was no statement of defence available did not
lead to an adverse inference. The motion judge’s findings would
not flow through and be determinative of the issues at trial;
rather, they were based only upon the evidence available at the
time of the motion for the purpose of assessing the presumptive
connecting factors relating to the issue of jurisdiction. The
motion judge was required to make some findings for the purpose of
providing a decision on the motion and was permitted to rely on the
respondent’s evidence for this purpose: Young v. Tyco
International of Canada Ltd., 2008 ONCA, at para. 31.

(2) No. The trial judge did not state, in absolute terms, that
hiring an expert to interpret Quebec law would not be necessary.
She specifically saw the possibility that an expert would be
required (“If that were necessary”) and then said that
the cost of an expert would not render the proceedings in Ontario
unfair. A motion judge’s decision on a forum non
conveniens issue is a discretionary one; an appellate court
should intervene only if the motion judge erred in principle,
misapprehended or failed to take account of material evidence, or
reached an unreasonable decision: Haaretz.com v. Goldhar,
2018 SCC 28, at para. 49.

The appellants’ assertion on the forum non
conveniens issue that the motion judge erred in saying that
“the most that can be said at this stage is that the laws of
Quebec may apply” was inconsistent with the argument the
appellants made on the jurisdiction issue. On that issue, the
appellants said that the motion judge erred by making findings
relating to the merits of the claim in the underlying action and
that those findings would improperly flow through and bind the
trial judge. Now, on the forum non conveniens issue, the
appellants criticized the motion judge’s tentative language
(“may apply”) on the basis that it “completely
disregards the express wording of the contract and the agreement of
the parties that the contract is governed by the laws of
Quebec”. In addition, the Governing Law clause of the
contract, although the wording is explicit on governing law
(“the Province of Quebec”), the clause also refers to
“the non-exclusive jurisdiction of the courts of such
Province”. Moreover, it was important that there were both
contract and tort claims in the statement of claim and this may
raise difficult questions of the applicable law.

Malik v. Attia, 2020 ONCA
787

[Strathy C.J.O., Brown and Huscroft JJ.A.]

Counsel:

S.A. Rosen, for the appellants

H. Dhaliwal, for the respondent

facts:

The Seller owned two abutting properties in Mississauga, ON (the
“Properties”). Since 1983, the properties were always
conveyed together to the same new owners. The Seller acquired the
Properties in 2013 and listed the Properties for sale in 2016. She
indicated in the listing that the city had consented to
subdivision, but that the Properties were to be sold together.

In October 2016, the Buyers entered into two agreements of
purchase and sale which provided that the purchase price for each
Property was $725,000, the deposit $50,000, and that closing would
occur no later than December 8, 2016. The Buyers paid the deposits
totalling $100,000, which the defendant brokerage continues to hold
in trust. Neither Agreement contained a mortgage financing
condition, and the Buyers had waived or deleted the provisions
stipulating that their offers were conditional upon the approval of
the terms by their solicitor.

The Ontario Real Estate Association standard form was used for
the Agreements, which contained the following clause regarding the
Planning Act:

PLANNING ACT: This Agreement shall be
effective to create an interest in the property only if Seller
complies with the subdivision control provisions of the Planning
Act by completion and Seller covenants to proceed diligently at
Seller’s expense to obtain any necessary consent by
completion.

Schedule C to the Agreements contained a sketch of the
Properties for use on an Application for

Consent, which showed that one Property would be severed from
the other. The Mississauga Committee of Adjustment had approved the
Seller’s application to sever the Properties subject to the
condition that the approval be fulfilled by July 2017. This
information was provided to the Buyers.

In November 2016, Buyers’ counsel emailed Seller’s
counsel requisitions for each Property that required satisfactory
evidence of compliance with the Planning Act prior to
closing. The requisitions also required the Seller to execute and
return a statutory declaration to Buyers’ counsel before
closing which included this wording:

I do not retain the fee or the equity of redemption in, or a
power or right to grant, assign or exercise a power of appointment
with respect to any land abutting the lands being conveyed in the
subject transaction.

On December 7, 2016, Seller’s counsel sent Buyers’
counsel a letter enclosing the keys and closing documents to be
held in escrow until the transfers had been registered. In the
enclosed Statutory Declarations, the above-noted paragraph had been
amended by blacking out the word “not”, so that it read
“I do [blacked out] retain the fee or the equity of
redemption…”

The transactions did not close because the Buyers did not have
firm mortgage financing in place.

By January 12, 2017, Seller’s counsel had advised
Buyers’ counsel that the Buyers were in fundamental breach of
the Agreements and that the Buyers’ deposits would be
forfeited. Buyers’ counsel and real estate agent subsequently
made various proposals to the Seller to revive and restructure the
transactions. Seller filed her claim for forfeiture of the deposit
and breach of contract against the Buyers on January 30, 2017. In
April 2019, the Seller moved for summary judgment. By that time,
the Properties had not been re-sold.

The motion judge addressed two issues. First, the Buyers argued
that the amended Statutory Declarations stated that the Seller was
retaining the fee or equity of redemption in the abutting parcel,
thereby contravening the subdivision control provisions of the
Planning Act. According to the Buyers, this meant that the
Seller’s tender was defective, that she had repudiated the
Agreements, and the Agreements were invalid. The motion judge
rejected this submission, holding that the Buyers’ offers
indicated their intention to purchase both parcels together and
treat the Properties as merged and capable of being sold
simultaneously in the same transaction. He also noted that the
subdivision control provisions of the Planning Act did not
apply to a mistake made between the executing parties. He concluded
that the Seller did not breach the Agreements by presenting the
amended Statutory Declarations to the Buyers, but that the Buyers
breached the Agreements on January 10, 2017, when they failed to
pay the amounts due on closing. Thus, there was no genuine issue
requiring a trial regarding breach of the Agreements.

The second issue was the Buyers’ contention that granting
partial summary judgment would offend the principle that such
relief should only be granted rarely. Instead, the Buyers argued
the motion judge should have set the action down for trial. Again,
the motion judge disagreed, holding that the facts regarding the
breach of contract issue were not in dispute, making this one of
the rare cases in which partial summary judgment was appropriate.
He directed a trial on the issues of damages and forfeiture of the
deposit. The Buyers appealed, arguing that the motion judge wrongly
decided both issues.

issues:

(1) Did the motion judge err by concluding there was no genuine
issue regarding trial with respect to whether the Buyers had
breached the Agreements?

(2) Did the motion judge err by granting partial summary
judgment where it was inappropriate to bifurcate the claim, given
the nature of the issues and the risk of inconsistent findings of
fact?

holding:

Appeal dismissed.

reasoning:

(1) No. The Buyers advanced two arguments.
First, they asserted that the motion judge erred in holding that
they breached the Agreements. The Buyers acknowledged they lacked
the funds to complete the transactions by the closing date, but
argued that the Agreements did not comply with the subdivision
control provisions of the Planning Act and therefore were
void. Furthermore, the Buyers submitted that the evidence did not
permit the motion judge to conclude that the Buyers intended to
purchase both parcels in a single transaction. Second, the Buyers
argued that the Seller tendered defective closing documents, which
signalled that she was not ready, willing and able to provide
marketable title on closing.

The Court emphasized the undisputed factual backdrop that the
Buyers lacked the funds to purchase the Properties on any of the
scheduled closing dates. Thus, in respect of the mutually dependent
promises to pay and to convey, the Buyers were not ready, willing,
and able to perform their promise to pay. The Buyers contended that
they were entitled to point to defective performance by the Seller
to justify their own non-performance even if they were ignorant of
the deficiency at the time of termination. The Court disagreed, and
stated it was difficult to see how the Buyers could assert that
they were not aware, at the time of the scheduled closings, of the
alleged defects in title and tender on which they rested their
appeal.

Simultaneous conveyances of abutting properties involving the
same parties merge the properties for Planning Act
purposes. The parties agreed that the Properties so merged in 1983.
The motion judge’s finding that the parties regarded the sale
and purchase of the Properties as a single transaction was amply
supported by the evidence. Buyers’ counsel conceded that
closing both Agreements simultaneously was permissible under the
Planning Act and, if the deals had closed at the scheduled
times, they would have complied with the Planning Act. The
jurisprudence and practice literature supported this view. The
Court held that by entering into the two Agreements to sell the
abutting Properties to the same purchaser with the same closing
date, the parties clearly treated the purchase and sale of the
Properties as a single transaction, and found that the Agreements
contemplated that there would be simultaneous conveyances that
conformed to s. 50(15) of the Planning Act on closing.

The Buyers’ second argument was based on the amendments the
seller made to the Statutory Declarations. The Seller had blacked
out the word “not” so that it read:

I do [blacked out] retain the fee or the equity of redemption
in, or a power or right to grant, assign or exercise a power of
appointment with respect to any land abutting the lands being
conveyed in the subject transaction.

The Buyers submitted that this amendment invalidated the
Seller’s tender of documents, and argued that the Seller must
have known she was attempting to close the transactions in
violation of the Planning Act. The Court rejected this
submission too, as it ran counter to the weight of the
evidence.

In the Court’s view, it did not matter whether the
amendments resulted from an error or from punctiliousness. Evidence
regarding the Seller’s conduct demonstrated that the amendments
to the Statutory Declarations were made in the context of the
Seller’s communicated intention that the Agreements would
culminate in the simultaneous conveyance of the Properties. In
three separate communications, Seller’s Counsel reiterated to
Buyers’ counsel that Seller owned both Properties, the parcels
were part lots, and that the Buyers made the offer to purchase with
full knowledge that the Properties had merged being abutting lands.
These clearly indicated that the Seller sought to close the
transactions in compliance with the Planning Act.

When read in the context of the Seller’s communications
showing that the Agreements called for simultaneous conveyances,
the amendments to the Statutory Declarations could not be
characterized as a defect in the tendered documents or a failure to
answer the Buyers’ requisition. On the contrary, the Seller
made it clear that she was ready, willing, and able to convey
marketable title to the Properties in compliance with the
Planning Act, thereby fulfilling her obligation under the
Agreements. Accordingly, the Court found no error in the motion
judge’s conclusion that the Buyers breached the Agreements on
January 10, 2017 when they failed to pay the full amounts owing
upon closing.

(2) No. The Buyers argued that the motion judge
erred in granting partial summary judgment as this was a complex,
multi-issue case with facts and credibility issues in dispute. They
contended that the motion judge’s findings would unfairly bind
the trial judge, who considered the issues of relief from
forfeiture and the claim for damages.

The Court was not persuaded. On the issues as pleaded and the
affidavit evidence, the risk of inconsistent findings of fact on
the liability issues and the issues of forfeiture and damages was
seen as minimal. The risk of inconsistent findings was only one of
several matters the motion judge was required to consider. When
deciding whether to grant summary judgment, in whole or in part, a
motion judge must determine whether, in the circumstances, partial
summary judgment will achieve the objectives of proportionate,
timely, and affordable justice or, instead, cause delay and
increase expense.

That being said, this case involved a modest amount of money and
could be distilled down to the question of who was entitled to the
$100,000 in deposits. The case had the potential to fall within the
monetary limits of a simplified procedure action. Bifurcating a
simplified procedure action invariably would push legal costs into
the realm of the disproportionate. The Court also noted that by the
time the issues were finally adjudicated, the action would have
languished in the Ontario civil court system for four to five
years, an unconscionable amount of time for an action involving
this amount of money.

Given the foregoing, the Court strongly disagreed with the
Seller’s decision to move for partial summary judgment. That
being said, the Court stated this was not a ground for appellate
intervention. To set aside the partial summary judgment solely on
the basis that the process added cost and delay would, in its own
turn, only add more cost and delay.

Dhatt v. Beer, 2020 ONCA
799

[Brown J.A. (Motion Judge)]

Counsel:

A. Herschorn, for the moving parties, M.D. and K.D.

D.P. Lees and Z. Silverberg, for the responding parties, D.B.
and I.B.

S.L. Rosenberg, for the responding parties, J.B. and Re/Max West
Realty Inc., Brokerage

E. Rogers, for the moving intervenor, Rogers & Company
Professional Corporation

M. Rotman, for the execution creditors, M.S. and C.S.

Keywords: Civil Procedure, Appeals, Expediting
Appeal, Intervention, Contracts, Real Property, Agreements of
Purchase and Sale of Land, Remedies, Specific Performance

facts:

This case involved two motions relating to an appeal from an
order of specific performance. In 2016, the moving parties (the
“Purchasers”) entered into an agreement of purchase and
sale for a house owned by the responding parties (the
“Vendors”). The Vendors defaulted on the agreement and
the Purchasers brought an action seeking specific performance. In
March of 2020, specific performance was granted and the
Vendor’s third party claim against their brokers (the other
responding party) was dismissed when the Vendors did not
participate in the trial after failing to obtain an adjournment.
Substantial indemnity costs were ordered against the Vendors in
relation to both actions. In July, the trial judge issued the
‘Transaction Order’ which outlined a process for the
Vendors to deliver up vacant possession of the property to the
purchasers.

The Vendors appealed both the trial judgment and the Transaction
Order, and moved for a stay of the trial judgment pending the
appeals. This motion was refused when the Purchasers undertook not
to deal with the subject property while the appeals were ongoing.
As part of this motion, the motion judge stated that the cost
orders under the trial judgment were stayed under the Rules of
Civil Procedure.

The Purchasers took possession of the home in September, 2020
but the sale had not yet closed. While the attorney for the Vendors
was preparing a statement of adjustments, it became apparent that
there were roughly $1,000,000 worth of encumbrances on the property
(mortgages, real estate commissions, taxes, the cost orders,
executions in favour of M.S. and C.S. and executions in favour of
Rogers & Company (“Rogers”). However, the purchase
price under the agreement and the trial judgement was only
$835,000, leaving a shortfall. As part of the trial judgment, the
trial judge held that the Purchasers were to deduct from the
purchase price the amount of the cost orders, resulting in them
receiving full value for their claims while other creditors would
be forced to accept less than face value of their claims.

In related proceedings, Rogers has moved before the Superior
Court to vary the trial judgment so that the sale be conducted at
the now fair market value of the property (close to $1.5 million)
which would allow all creditors to get what they are owed.

The Purchasers brought a motion seeking to expedite the
Vendors’ appeal, requiring the Vendors to post security for
costs and seeking to lift the stay of the cost orders. In a second
motion, Rogers sought leave to intervene as an added party on the
Purchasers’ motion and to request that the Purchasers’
motion be delayed until after Rogers motion before the Superior
Court is disposed of.

issues:

Should the Purchaser’s motion be
granted?
Should Rogers be granted leave to
intervene as an added party?

holding:

Purchasers’ motion granted in part. Rogers’ motion
dismissed.

reasoning:

(1) Purchasers’ Motion

The responding and intervening parties sought to have this
motion dismissed or delayed until the Superior Court proceedings
were disposed of. The Court of Appeal was unwilling to do so. The
Court of Appeal was the proper forum to decide the appeals from the
trial judgment and the Transaction Order, and the Superior Court
was the proper forum for the priority dispute between the
creditors. While these proceedings were interrelated, they need not
be determined in any particular order.

Beyond the argument that the Superior Court proceedings should
be disposed of first, the Vendors offered no persuasive reason as
to why the appeals should not be expedited and so the motion for an
expedited appeal was granted. Given the expedited appeal date, set
for February, 2021, the Purchasers abandoned the other elements of
their motion (security for costs and lifting the stay of the cost
order).

(2) Rogers’ Motion

The Court of Appeal was very appreciative of the materials filed
by Rogers, as they helped illuminate the factual background and
outline the guiding principles used to decide the Purchasers’
motion. However, Rogers’ motion for leave to intervene was so
that they could argue issues of priority between the creditors.
Given that the Superior Court was the proper forum for the priority
dispute, there was no reason for Rogers to intervene on the
appeals. Rogers’ motion for leave to intervene was therefore
dismissed.

SHORT CIVIL DECISIONS

Sparr v. Downing, 2020 ONCA
793

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

Counsel:

K. Kernisant for the appellant, B.R.J.S.

I. Vallance for the respondent, D.L.D.

614128 Ontario Ltd. (Trisan Construction) v.
Toronto (City), 2020 ONCA 803

[Lauwers, Miller and Nordheimer JJ.A]

Counsel:

K. J. McKenzie for the appellant, 614128 Ontario Ltd. o/a Trisan
Construction

M. Wright and G. Tanner for the respondent, City of Toronto

Keywords: Construction Law, Trust Obligations,
Statutory Holdback, Settlements, Construction Lien Act,
R.S.O. 1990, c. C.30

BONUS PROVINCIAL OFFENCES DECISION

R. v. Irwin, 2020 ONCA
776

[Doherty, Hourigan and Pardu JJ.A.]

Counsel:

G.C. Borean, for the appellant

C.G. Bendick, for the respondent

facts:

The appellant was charged with failing to comply with several
orders under the Building Code Act (the “Building
Code”). Between 1973 and 1996 the appellant erected
several buildings on his property and entered into site plans and
applied for various building permits for them. In 1996, six orders
were issued to him under the Building Code requiring him
to obtain permits for the buildings or remove them. The order
related to seven buildings (numbered 1-7 consecutively). The
appellant testified that after receiving the 1996 orders, he gave
his lawyer permits for buildings 1, 2 and 5-7. He did not believe
buildings 3 and 4 required permits and so never obtained them.

The lawyer gave the permits to the building inspector and the
charges were withdrawn. Sadly, the lawyer died in a fire at his
office sometime thereafter and the permits and records relating to
the 1996 orders were destroyed. In 2013, six new orders were issued
against the appellant that were exactly the same as the 1996
orders, the only difference being that the 2013 orders stated that
they replaced the 1996 orders. The appellant chose not to follow
the appeal those orders, and instead chose to do nothing. The
appellant was then charged with contravening the 2013 orders.

At trial, before a justice of the peace, the appellant’s
defence was that he had in fact complied with the orders for
buildings 1, 2 and 5-7, and that permits were not required for
buildings 3 and 4. The Crown objected to this defence at trial,
claiming it was a collateral attack on the validity of the orders,
which would be impermissible. The justice of the peace found that
the appellant was not attacking the validity of the order, but
rather, arguing that he had complied with the order. This was not a
collateral attack. After this determination, the justice of the
peace made several factual findings and ultimately acquitted the
appellant.

On appeal to the Ontario Court of Justice, the appellate judge
reversed the trial decision, holding that the appellant’s
position was in fact an impermissible collateral attack on the
orders because s. 25 of the Building Code was the proper
avenue for disputing an order.

The appellant was granted leave to appeal to the Court of
Appeal.

issues:

Did the appellate judge err in holding that the appellant’s
defence was an impermissible collateral attack on the validity of
the orders?

holding:

Appeal allowed in part.

reasoning:

Yes in respect of some, but not all, of the orders. The Court of
Appeal first endeavoured to state the law in Ontario on collateral
attack. In general, “a collateral attack is defined as an
attack on an order ‘made in proceedings other than those whose
specific object is the reversal, variation, or nullification of the
order'”. It is a rule designed to protect the
administration of justice and to prevent someone who has been
charged with violating an order from arguing the validity of the
order in their defence.

The Supreme Court of Canada (“SCC”) also developed a
different approach to be taken when dealing with collateral attacks
on the orders of administrative decision makers. Given the
important function these administrative decision makers hold in our
society and the importance of recognizing the legislature’s
choices in empowering them, particular focus needs to be given. In
Maybrun, the SCC laid out the framework as follows: a
court must first determine whether there was a collateral attack;
and secondly, the court must then determine if the legislative
intent behind the governing legislation was to permit collateral
attacks. In assessing the second factor, courts should consider the
following five non-exhaustive factors:(1) the wording of the
statute under the authority of which the order was issued; (2) the
purpose of the legislation; (3) the existence of a right of appeal;
(4) the kind of collateral attack in light of the expertise or
raison d’être of the administrative appeal tribunal; and
(5) the penalty on a conviction for failing to comply with the
order.

There is also a residual discretion not to apply the rule
against collateral attack. Since it is a rule designed to protect
the administration of justice, in situations where the rigid
application of the rule would create an injustice, it should not be
so applied. However, when dealing in the administrative law space,
the role of discretion is diminished, as courts are bound to give
effect to the intentions of the legislature. This issue is not
readily discussed in previous jurisprudence and is part of why
leave to appeal was granted in this case.

The Court of Appeal also addressed another line of cases that
defines collateral attacks as an attack on the validity of the
order itself or its legal effect, rather than attacks on the
factual basis underpinning an order. This line of cases is aptly
illustrated by the SCC’s decision in Toronto (City) v CUPE,
Local 79, 2003 SCC 63. In that case, a union member was
convicted of sexual assault and subsequently terminated from his
employment with the City of Toronto. In subsequent proceedings over
the dismissal, the union argued that the factual grounds relied on
in the conviction were wrong, an argument which the labour board
accepted and found the employee had been dismissed without cause.
On appeal to the Ontario Divisional Court, the decision was quashed
as the union’s argument was an attempt to re-litigate the
conviction and was thus a collateral attack. On further appeal to
the SCC, the SCC rejected the application of collateral attack to
the issue because the union was not arguing the validity of the
conviction or its legal effect. Instead, the union was attacking
the correctness of the factual basis for the conviction, which is
different. While the SCC ultimately dismissed the appeal because
the attack on the factual basis was an abuse of process, the
comments on the rule against collateral attack were particularly
salient and relied upon heavily in the appeal at hand.

The Court of Appeal noted that before determining whether a
collateral attack is permissible, a court must first consider the
nature of the argument or defence being raised. If is the argument
attacks the validity of the order, the rule against collateral
attack applies and the analysis needs to proceed to the next stage
of assessing whether it was permissible. If the argument is more
properly characterized as an attack on some factual underpinning of
the order, or some consequence of the order that is predicated on
accepting the validity and legal effect of the order, the rule
against collateral attack does not apply and the analysis ends at
that point.

Turning to the appeal at hand, the Court of Appeal subdivided
the analysis into the orders relating to buildings i) 1, 2 and 5-7
and ii) the orders relating to building 3 and 4. The Court also
noted that since it is a question of whether a legal principle
applies, the standard of review is correctness.

i) Buildings 1, 2 and 5-7

While the justice of the peace did not consider the line of
cases following Toronto (City) in her decision at trial,
her analysis was in line with it. At trial, the justice found that
the appellant was arguing that he had in fact complied with the
orders and had obtained permits. To argue compliance, one must
first acknowledge the validity and legal effect of an order. The
Crown argued that the appeal judge was correct and that by saying
that he had complied with the 1996 orders such that the 2013 orders
were incorrectly made, the appellant engaged in a collateral
attack. However, the Court of Appeal rejected this argument and
found that the appellant’s argument was more aptly
characterized as attacking the factual background of the 2013
orders in that he had complied with the previous orders. The
appellant never argued that permits were not required for these
buildings or that the orders should not have been made, he argued
that he had complied with them. This was in line with the
Toronto (City) case and so the Court of Appeal found there
was no collateral attack.

The Court of Appeal also saw no error in the trial justice’s
finding that the Crown had not proven the appellant’s guilt
under the charges, and so allowed the appeal, reinstating the
acquittal.

ii) Buildings 3 and 4

The Court of Appeal found that the rule against collateral
attacks applied to buildings 3 and 4. For these buildings, the
appellant did not argue that he had complied with the orders, but
rather, he argued that the orders were incorrect in that buildings
3 and 4 did not require permits. This was a defence of a different
nature than the appellant’s defence of the other charges, and
amounted to the appellant saying the orders should never have been
made, as buildings 3 and 4 did not meet the definition of building
under the Building Code. This was an attack on the
validity of the orders and the rule against collateral attacks thus
applied. The defence sought to invalidate the orders in a
proceeding whose specific object was not the reversal, variation or
nullification of the order.

Thus, the Court of Appeal had to move on to analyze the
Maybrun factors to determine whether it was a permissible
collateral attack based on the legislative scheme of the
Building Code.

Factor 1 – Wording of the Statute

This factor requires a court to analyze the wording of the
governing statute and to determine what is required of the decision
maker. Under the relevant sections of the Building Code,
the inspector has a very formulaic job to perform – the
inspector must assess whether the structure in question meets the
definition of a building. If it does, an order is made requiring
removal or a permit. There is no room for discretion or for
weighing of policy goals. Where a statute requires nothing more
than an application of the scheme, a task which any competent court
can perform, there is no indication that the legislature intended
to shield the inspector from collateral attack.

Factor 2 – Purpose of the Act

The Building Code aims to regulate building activity in
Ontario to protect the safety of everyone. Building permits are
used to prevent unsafe buildings from ever being erected in the
first place. This is a very important purpose and would be
undermined by permitting collateral attacks. By allowing persons to
wait until penal proceedings to challenge an order, rather than
requiring them to appeal within 20 days as is required under the
statute, would greatly increase the amount of time that a
potentially dangerous structure is in place. This undermines the
purpose of the Building Code and its crucial safety
functions and thus, this factors weighed in favour of not
permitting collateral attacks.

Factor 3 – Right of Appeal

Section 25 of the Building Code provides a broad right
of appeal. This weighs against permitting collateral attacks.

Factor 4 – The Kind of Collateral Attack at
Issue

This factor focuses on whether the attack on an order requires
considering factors that fall within an administrative appeal
tribunal’s specific expertise. If the attack is based on
matters falling out the decision maker’s realm of expertise,
this would favour permitting collateral attacks. Since the appeal
right under the Building Code lies to the Superior Court,
rather than a specialized tribunal or board, there is no reason to
believe that particular expertise is required. The Superior Court
is not expert in the Building Code relative to any penal
courts in Ontario, and so this factor weighed in favour of
permitting collateral attacks.

Factor 5 – Penalty Consequences

This factor requires an analysis of the seriousness of
consequences that could be faced under the order. For the
appellant, there was no chance of imprisonment and no minimum fine.
However, the maximum fines were $50,000 for a first offence and
$100,000 for subsequent offences. While the maximum fines are quite
large, the lack of minimum fines or imprisonment made this factor
neutral in the Court’s eyes.

Application

No one factor was determinative under the Maybrun
analysis. In this case, while some factors weighed in either
direction, the Court felt that factors 2 and 3 were the most
important, both of which weighed against permitting a collateral
attack. The Building Code’s safety functions would be
seriously undermined by permitting collateral attacks. As well, the
legislature gave an efficient, expedient and robust appeal right to
people against whom orders are issued. The fact that the appeal
must be exercised within 20 days further signifies the importance
of time in Building Code matters. Thus, the appellant
engaged in an impermissible collateral attack of the orders for
buildings 3 and 4. The appeal against these orders was dismissed
and the conviction affirmed.

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.

Courtroom Of Attraction Summaries (December 7 – December 11, 2020) – Litigation, Mediation & Arbitration

Table of Contents

Civil Decisions

Short Civil Decisions

Bonus Provincial Offences Decision

CIVIL DECISIONS

SHORT CIVIL DECISIONS

BONUS PROVINCIAL OFFENCES DECISION