Canada: Ontario Court Of Appeal Summaries (June 17 – 21, 2019)

Blaney's Appeals
Last Updated: July 4 2019
Article by John Polyzogopoulos

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

First off, we would like to congratulate our firm's very own, David Greenwood, for the excellent result obtained in Mikelsteins v. Morrison Hershfield Limited.  The Court dealt with the question of whether an employee who had been terminated was entitled to an increase in the value of shares that he held in the corporation, along with a share bonus, through the reasonable period of notice. The Court held that the terms of the Shareholders' Agreement alone govern the employee's rights regarding his shares, not the common law principle of reasonable notice. The employee received what he was contractually entitled to receive under the Shareholders' Agreement and the Employment Standards Act, 2000 had no application.

Another cases of interest this week is Third Eye Capital Corporation v. Ressources Dianor Inc./ Dianor Ressources Inc., where Court dealt with the question of whether a third party interest in land in the nature of a Gross Overriding Royalty could be extinguished by a vesting order granted in a receivership proceeding.

Lastly, for those who practice in the area of family law, you may wish to read the Court's summary of the procedural history in Beaver v. Hill, which was described at one point in time as a "procedural morass" and how the Court dealt with a recusal application.

Table of Contents

Civil Decisions

Hengeveld v. The Personal Insurance Company, 2019 ONCA 497

Keywords: Agency Law, Motor Vehicle Accident, Preservation Of Evidence, Spoliation, Third Party Claim, Reasonable Cause Of Action, Contribution and Indemnity, Contributory Negligence, Rules of Civil Procedure, Rule 21.01(1)(b), Negligence Act, R.S.O. 1990, c. N.1, Adams v. Thompson, Berwick, Pratt & Partners, (1987), 15 B.C.L.R. (2d) 51 (C.A.)

Kagan v. Brown, 2019 ONCA 495

Keywords: Family Law, Parenting Schedule, Standard of Review, Expert Reports, Maximum Contact Principle, Palmer Criteria, Divorce Act, R.S.C. 1985, c. 3, s. 16(1), D'Angelo v. Barrett, 2016 ONCA 605, Goldman v. Kudelya, 2017 ONCA 300, Children's Aid Society of Owen Sound v. R.D. (2003), 2003 CanLII 21746 (ON CA)

Genstar Development Partnership v. The Roman Catholic Episcopal Corporation of the Diocese of Hamilton in Ontario, 2019 ONCA 506

Keywords: Specific Performance, Agreement of Purchase and Sale, Transfer Agreement, Discretion, Repurchase Option, Property Law, Successor, Transferee, Insufficient Evidence, Excluded Assets, Contracts, Real Estate, Converting an Application to an Action

Third Eye Capital Corporation v. Resources Dianor Inc./ Dianor Resources Inc., 2019 ONCA 508

Keywords: Real Property, Contracts, Vesting Order, Statutory Interpretation, Receivership, , Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 65.13(7), 243, Conveyancing and Law of Property Act, R.S.O. 1990, c. C. 34, s.21,  Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 51 O.R. (3d) 641 (C.A.), Re Canadian Red Cross Society/Société canadienne de la Croix-Rouge (1998), 5 C.B.R. (4th) 299 (Ont. Ct. (Gen. Div.)), Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269

Dawe v The Equitable Life Insurance Company of Canada, 2019 ONCA 512

Keywords: Employment, Wrongful Dismissal, Bonus Entitlement, Termination Provisions, Severance Pay, Appropriate Notice Period, Employment Standards Act, 2000, S.O. 2000, c. 41, Ending Mandatory Retirement Statute Law Amendment Act, 2005, S.O. 2005, c. 29, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Wronko v. Western Inventory Service Ltd., 2008 ONCA 327Lowndes v. Summit Ford Sales Ltd., (2006), 206 O.A.C. 55 (C.A.), Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520, Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Taggart v. The Canada Life Assurance Company, (2006), 39 C.C.E.L. (3d) 48 (ONCA), Poole v. Whirlpool Corporation, 2011 ONSC 4100, aff'd 2011 ONCA 808

Mikelsteins v. Morrison Hershfield Limited, 2019 ONCA 515

Keywords: Employment Law, Shareholders' Agreement, Termination Without Cause, Reasonable Notice, Wrongful Dismissal, Standard Of Review, Standard Form Contract, Correctness, Employment Standards Act, 2000, S.O. 2000, c. 41, Section 60(1)(a), Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37

Beaver v. Hill, 2019 ONCA 520

Keywords: Family Law Act, R.S.O. 1990, c. F.3, rr. 2(1) and 14(1)2, Children's Law Reform Act, R.S.O. 1990, c. C.12, Settlement Conference, Case Management,  Rules of Civil Procedure, rule 14.05(3)(h), Answer and Claim, Custody

Shuttleworth v. Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518

Keywords: Judicial Review of Administrative Decisions, Personal Injury, Motor Vehicle Accident, Catastrophic Impairment, Reasonable Apprehension of Bias, Lack of Adjudicative Independence, Insurance Act, RSO 1990, c I.8, s 280, Statutory Accident Benefits Schedule, O Reg 34/10, Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, SO 2009, c 33, Sched 5, ss 7, 8, 15 and 16, IWA v Consolidated-Bathurst Packaging Ltd, [1990] 1 SCR 282, Tremblay v Quebec(Commission des affaires sociales), [1992] 1 SCR 952, Ellis-Don Ltd v Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 SCR 221, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25, Khan v College of Physicians & Surgeons of Ontario (1992), 9 OR (3d) 641 (ON CA), Valente v The Queen, [1985] 2 SCR 673, Bovbel v Canada (Minister of Employment and Immigration), [1994] 2 FC 563 (CA), Chipman Wood Products (1973) Ltd v Thompson (1996), 181 NBR (2d) 386 (CA); Fundy Linen Service Inc v New Brunswick (Workplace Health, Safety & Compensation Commission), 2009 NBCA 13

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