Court Of Appeal Summaries (August 12 – 16, 2024) - Civil Law - Litigation, Mediation & Arbitration

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 12, 2024.

In Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre) and in Henry v Zaitlen, released together as companion decisions, the Court engaged in lengthy discussions of the factors to be considered by the courts in the exercise of their discretion to depart from the presumptive prejudgment interest rates on non-pecuniary damages for personal injury under ss. 130(1) and (2) of the Courts of Justice Act. It is clear that courts should only deviate from the presumptive rate in rare circumstances, and even then, only where there is a sufficient evidentiary foundation for what prevailing market interest rates are.

Fair Voting BC v. Canada (Attorney General), was a constitutional law case involving a 13-party motion for leave to intervene. The Court reiterated the Peel test for leave to intervene as friend of the court, noting the necessity of a useful contribution with distinct perspective.

1000425140 Ontario Inc. v. 1000176653 Ontario Inc was an appeal of a partial summary judgment which had granted the rescission of an agreement of purchase and sale of a luxury home as a result of fraudulent misrepresentation.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

1000425140 Ontario Inc. v. 1000176653 Ontario Inc., 2024 ONCA 610

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Latent Defect, Torts, Fraudulent Misrepresentation, Conspiracy, Civil Procedure, Partial Summary Judgment, Remedies, Rescission, Equitable Damages, Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, [2014] 1 S.C.R. 8, Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372, 2008 SCC 14, Mariani v. Lemstra (2004), 246 D.L.R. (4th) 489 (Ont. C.A.), Chaba v. Khan, 2020 ONCA 643, Singh v. Trump, 2016 ONCA 747, 408 D.L.R. (4th) 235, Redican v. Nesbitt, [1924] S.C.R. 135, Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, Truscott and in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, Montreal Trust Co. of Canada v. Scotia McLeod Inc. (1995), 26 O.R. (3d) 481 (C.A.)

Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615

Keywords: Torts, Negligence, Occupier's Liability, Slip and Fall, Damages, Non-Pecuniary Damages, Civil Procedure, Prejudgment Interest, Statutory Interpretation, Standard of Review, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 127(1) and 128(1), (2) and (3), s.128(2), ss. 130(1) and (2), Family Law Act, R.S.O. 1990 s. 61, c. F.3, Bank Act, S.C. 1991, c. 46, Schedule I, c 46, Rules of Civil Procedure, r. 53.10,Henry v. Zaitlen, 2024 ONCA 614, Graham v. Rourke, [1991] 75 O.R. , (2d) 622 (C.A.), Irvington Holdings Ltd. v. Black (1987), 58 O.R. (2d) 449 (C.A.), Hislopv.Canada (Attorney General), [2005] 73 O.R., (3d) 641 (C.A.), Somers v. Fournier (2002), 60 O.R. (3d) 225 (C.A.), Robert McAlpine Ltd. v. Byrne Glass Enterprises Ltd., [2001] O.J. No. 3208 (C.A.), Andani et al. v. Peel (Regional Municipality) et al., [1994] 66 O.A.C. 137 (C.A.), Ben-Israel v. Vitacare Medical Products Inc. et al. (1999), 122 O.A.C. 57 (C.A.), Spencer v. Rosati et al. (1985), 50 O.R. (2d) 661 (C.A.), Kinbauri Gold Corp. v. Iamgold International African Mining Gold Corp. (2004), 192 O.A.C. 24 (C.A.), Apotex Inc. v. Wellcome Foundation Ltd., [2001] 1 F.C. 495 (C.A.), Pilon v. Janveaux (2006), 211 O.A.C. 19 (C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Triten Corp. of Canada Ltd. v. Borden & Elliot, [2000] 45 O.R. (3d) 409 (Gen. Div.), Pilon v. Janveaux, [2001] O.T.C. 251 (Sup. Ct.), Awan v. Levant, 2015 ONSC 2209, Macleod v. Marshall, 2019 ONCA 842, R. v. Find, 2001 SCC 32, Taylor v. Hanley Hospitality Inc., 2022 ONCA 376, Driedger, Construction of Statutes, 2^nd ed. (Toronto: Butterworths, 1983), Ontario Law Reform Commission, Report on Compensation for Personal Injuries and Death (Toronto: Ministry of the Attorney General, 1987)

Henry v Zaitlen, 2024 ONCA 614

Keywords: Torts, Negligence, MedMal, Damages, Non-Pecuniary Damages, Civil Procedure, Prejudgment Interest, Statutory Interpretation, Standard of Review, Bank Act, S.C. 1991, c. 46, Schedule I, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128(2) and 130(1)-(2)(a), 127, 128(1)-(2) and 130(1)-(2), Family Law Act, R.S.O. 1990, c. F.3, s. 61, Judicature Act, RSNL 1990, c J-4, s. 36(3), Insurance Act, R.S.O. 1990, C. I.8, s. 258.3(8.1), Rules of Civil Procedure, rule 53.10, MacLeod v. Marshall, 2019 ONCA 842, Andani et al. v. Peel (Regional Municipality) et al., [1994] 66 O.A.C. 137 (C.A.), Cobb v. Long Estate, 2017 ONCA 717, Awan v. Levant, 2015 ONSC 2209, Stellarbridge Management v. Magna International (2004), 71 O.R. (3d) 263 (C.A.), Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615, Pilon v. Janveaux (2006), 211 O.A.C. 19, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Somers v. Fournier (2002), 60 O.R. (3d) 225 (C.A.), Graham v. Rourke, [1991] 75 O.R. (2d) 622 (C.A), Ben-Israel v. Vitacare Medical Products Inc. et al. (1999), 122 O.A.C. 57 (C.A.), Novakovic v. Kapusniak, 2008 ONCA 381, Metropolitan Toronto Police Widows & Orphans Fund v. Telus Communications Inc. (2008), 44 B.L.R. (4th) 140 (Ont. Sup. Ct.), McFlow Capital Corp. v. James, 2021 ONCA 753, Irvington Holdings Ltd. v. Black (1987), 58 O.R. (2nd) 449 (C.A.), Hislopv.Canada (Attorney General), [2005] 73 O.R. (3d) 641 (C.A.), Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, Tuffnail v. Meekes, 2020 ONCA 340, Apotex Inc. v. Wellcome Foundation Ltd., [2001] 1 F.C. 495 (C.A.), 2002 SCC 77, Kinbauri Gold Corp. v. Iamgold International African Mining Gold Corp. (2004), 192 O.A.C. 24 (C.A.), Robert McAlpine Ltd. v. Byrne Glass Enterprises Ltd., [2001] O.J. No. 3208 (C.A.), Spencer v. Rosati et al. (1985), 50 O.R. (2d) 661, Triten Corp. of Canada Ltd. v. Borden & Elliot, [2000] 45 O.R. (3d) 409 (Gen. Div.), R. v. Find, 2001 SCC 32, Taylor v. Hanley Hospitality Inc., 2022 ONCA 376

Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619

Keywords: Election Law, Constitutional Law, Civil Procedure, Interveners, Canada Elections Act, S.C. 2000, Canadian Charter of Rights and Freedoms, s. 3, s. 15(1),Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), Figueroa v. Canada (Attorney General), 2003 SCC 37, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d) 32 (Gen. Div.), Ishaq v. Canada (Citizenship and Immigration), 2015 FCA 151, Right to Life Association of Toronto and Area v. Canada (Employment, Workforce and Labour), 2022 FCA 67

Short Civil Decisions

Ash v. Ontario (Chief Medical Officer), 2024 ONCA 617

Keywords: Civil Procedure, Orders, Setting Aside or Varying, Vexatious Litigation, Appeals, Extension of Time, Rules of Civil Procedure, rr. 2.1, 59.06(2)(a)

CIVIL DECISIONS

1000425140 Ontario Inc. v. 1000176653 Ontario Inc., 2024 ONCA 610

[Rouleau, Benotto, and Thorburn JJ.A.]

COUNSEL:

J. Curry, J. Starck and B. Greenaway for the appellants
J. Adair and R. Rai for the respondent

FACTS:

The respondent was the purchaser in the sale of a luxury home in Burlington, Ontario (“the property”). The seller was the appellant, 1000176653 Ontario Inc. (“the seller”), a company which was owned and solely directed by R.G. R.G.'s son, S.G., was involved in the events which surrounded the sale of the home. S.G. had a complex relationship with a former occupant of the property, A.P.

After closing, the owner of the respondent purchaser occupied the premises. The purchaser received a suspicious visitor at the property; the visitor was looking for A.P. The respondent later discovered the property had previous break-in attempts by people who thought the property was still inhabited by A.P. A.P. had been sued for fraud, was involved in contested bankruptcy hearings, and had defrauded some “very bad people.”

The purchaser brought two claims against the appellants. First, a claim against the seller for rescission of the Agreement of Purchase and Sale (“APS”) on the basis that the seller made fraudulent representations that induced them to purchase the property. Second, a claim for conspiracy against the other appellants, 1223408 Ontario Limited, R.G., S.G. and Sunray Group of Hotels Inc for conspiring with the seller. The parties agreed to proceed by way of summary judgement.

Evidence adduced at the motion demonstrated that S.G. told R.G. about the safety risk to future occupants of the property posed by A.P.'s past occupancy. The motion judge found it appropriate to attribute R.G.'s knowledge to the seller. Among other elements of the test for fraudulent misrepresentation being met, the motion judge granted partial summary judgement against the seller. The motion judge ordered rescission of the APS of the property for fraudulent misrepresentation and latent defect, and awarded equitable damages.

In this appeal, the appellants claimed that the motion judge erred on three grounds. First, by reversing the onus of proof and holding that the appellants, including the seller, fraudulently represented that the property was “safe and secure.” Second, by finding that the seller failed to disclose a latent defect in the property. Third, by granting partial summary judgement in favour of the purchaser.

ISSUES:

Did the motion judge incorrectly reverse the onus of proof pertaining to fraudulent misrepresentation?
Did the motion judge err in finding that the seller failed to disclose a latent defect in the property?
Did the motion judge err in granting partial summary judgement in favour of the purchaser?

HOLDING:

Appeal dismissed.

REASONING:

No, the motion judge did not incorrectly reverse the onus of proof. The Court found that the motion judge correctly articulated the law of fraudulent misrepresentation and made findings that were firmly grounded in the record. In addition, the Court found no error in the motion judge's finding that the seller made the representation with the intention that it would be acted on by the purchaser. This evidence went uncontradicted and the Court found that the motion judge's finding did not represent a reverse onus of proof. Rather, it was a recognition that the appellants failed to adduce any evidence to dispute the evidence lead by the respondent.
Not decided. Given the conclusion that the claim for fraudulent misrepresentation was amply supported by evidence, the Court saw no need to address this ground of appeal.
No, the motion judge did not err in granting partial summary judgment. The Court reviewed whether the fraudulent misrepresentation claim was linked to the conspiracy claim such that it was inappropriate to grant partial summary judgment. The essence of the conspiracy claim was whether any of the appellants conspired with the seller to make fraudulent representations. The Court found that the issue of R.G.'s personal liability was distinct and separate from the liability of the corporation for which he is director.

The appellants further argued that by imputing R.G.'s knowledge onto the seller, the motion judge effectively found both R.G. and the seller corporation liable for fraudulent misrepresentation. The court disagreed, finding that the motion judge explicitly stated that there was no finding that R.G. was personally liable for fraudulent misrepresentation. Nor would this align with trite law which sees a corporation as a separate legal entity.

While the Court found that the motion judge did not directly address the issue of appropriateness, the only issue raised by the appellants was possible inconsistency in the findings of fact. The Court saw no inconsistent findings of fact and found that partial summary judgment was appropriate. Finally, the Court concluded that the separate considerations and analysis required by the conspiracy claim allowed for the issues of fraudulent misrepresentation and latent defect to be dealt with by partial summary judgment.

Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615

[Roberts, Coroza and Gomery JJ.A.]

COUNSEL:

J. Y. Obagi and E. A. Quigley, for the appellants

J. Lin and R. McIntyre, for the respondents

FACTS:

The appellant suffered a serious head injury when she fell on the premises owned by the respondent. The appellants were awarded damages, with a percentage of the total damages being for non-pecuniary pain and suffering.

The only issue on this appeal was the trial judge's prejudgment interest order with respect to the jury's awards of non-pecuniary damages for personal injury and past pecuniary damages. The trial judge ordered prejudgment interest payable on the jury's awards for non-pecuniary damages at a rate of 1.3 per cent and on past pecuniary damages at a rate of 0.8 per cent. The trial judge allowed the respondents' motion to deviate from the presumptive five per cent statutory prejudgment interest rate for non-pecuniary damages and dismissed the appellants' cross-motion to set prejudgment interest on their awards for both non-pecuniary and past pecuniary damages at 8.46 per cent based on their evidence of the rate of return earned by the respondents' insurer and their own investments' rates of return.

ISSUES:

Did the trial judge err in law, leading to the appropriate standard of review to be that of correctness?
Did the trial judge err in her treatment of the presumptive five per cent prejudgment interest rate for non-pecuniary damages?
Did the trial judge fail to consider relevant factors under s. 130(2) of the Courts of Justice Act (CJA) while relying on irrelevant factors?
Did the trial judge err in her consideration of what “market interest rates” are?
Should the court exercise its discretion under s. 130(1) of the CJA in the circumstances of this case?

HOLDING:

Appeal allowed.

REASONING:

Yes.

The appropriate standard of review was correctness. There were several analytical flaws in the trial judge's reasoning which resulted in errors of law. As a result, no deference was owed to the trial judge's exercise of discretion. The trial judge began her analysis by correctly noting that s. 128 of the CJA “contemplates two default rates of prejudgment interest” – the prejudgment interest rate under s. 128(1) for pecuniary damages and the exception to s. 128(1) under s. 128(2), the five per cent prejudgment interest rate for non-pecuniary damages for personal injury. She also noted her discretion under s. 130(1) to deviate from the default rates where “it is just to do so” in accordance with the factors set out in s. 130(2) of the CJA.

However, the trial judge erred by misapplying the statutory prejudgment interest rate presumption with respect to non-pecuniary damages. In addition, with respect to prejudgment interest on past pecuniary and non-pecuniary damages, the trial judge failed to consider all relevant factors under ss. 130(1) and (2) of the CJA. As a result, she erred by lowering the presumptive five per cent prejudgment interest on the award of non-pecuniary damages and by failing to increase the prejudgment interest rates on the awards of non-pecuniary and pecuniary damages.

The Court explained that the statutory interest scheme represents the will of the legislature, it is not open to the courts to depart from it except where it is just to do so. The Court stated that a plain reading of the factors under s. 130(2) reveals the legislative intention that the court's exercise of its discretion under s. 130(1) must be a balanced one, based on the wide consideration of justice and not curtailed by any one particular factor.

Yes.

The trial judge did not correctly apply the presumptive five per cent prejudgment interest rate for non-pecuniary damages. She therefore did not properly give effect to the onus on the respondents to demonstrate with appropriate evidence that it was “just” to decrease the presumptive five per cent prejudgment interest rate.

The trial judge mistakenly relied on criticisms in the Ontario Law Reform Commission, Report on Compensation for Personal Injuries and Death (Toronto: Ministry of the Attorney General, 1987) and obiter remarks in Awan that the “mischief” that gave rise to the five per cent rate prescribed under s. 128(2) of the CJA and r. 53.10 of the Rules “was no longer being served by a five per cent rate given the interest rate climate”, to justify departing from the statutory presumption.

The trial judge misinterpreted the reference to Awan in MacLeod as meaning that the Court effectively determined that the five per cent rate could be ignored given the fluctuations in interest rates. The Court held that MacLeod does not stand for that conclusion. In MacLeod, the Court reiterated that relevant factors under s. 130(2) had to be considered in the court's exercise of its discretion and that the trial judge in that case therefore erred by failing to look at changes in market interest rates. To the extent that the trial judge exercised her discretion on the erroneous principle that she was no longer bound by the plain language of s. 128(2) and r. 53.10 of the Rules, she erred.

Yes.

The trial judge correctly instructed herself that she was required to look at the factors under s. 130(2) of the CJA. However, she failed to do so because her focus remained fixed on prejudgment interest rates to the exclusion of the other applicable criteria under s. 130(2) that she was required to consider. This erroneous approach affected her consideration of prejudgment interest on past pecuniary and non-pecuniary damages.

The trial judge's concern about overcompensation of the appellants because of the lower range of prejudgment interest rates at the relevant period compared to the five per cent presumption was an analytical error and ignored the legislative policy underlying s. 128(2) of the CJA. The trial judge's narrow focus on prejudgment interest rates and her failure to consider all the applicable factors in s. 130(2) in deciding what was just in the circumstances were not in accordance with a full and balanced application of the factors set out in s. 130(2) and amounted to an error of law.

Yes.

The trial judge also erred in her consideration of what “market interest rates” are. This error affected her treatment of prejudgment interest on past pecuniary and non-pecuniary damages. In basing her consideration on an average of prejudgment interest rates for pecuniary damages under s. 127(1) of the CJA, the trial judge effectively equated “market interest rates” with prejudgment interest rates for pecuniary damages. The trial judge's approach represented analytical error.

The Court held that interpreting “market interest rates” to mean prejudgment interest rates or bank rates does not conform with the plain meaning of the prejudgment interest provisions of the CJA. The Court held that the trial judge erred in holding that they were equivalent. She therefore proceeded on a wrong principle in exercising her discretion.

The trial judge's rejection of the appellants' rationale behind the proposed weighted average of the rate of return on their investment portfolios was unreasonable and reflected a misunderstanding of the appellants' position. The appellants' argument for a higher prejudgment interest rate was that they could have invested the damages ultimately awarded at a much higher rate than the presumptive prejudgment interest rates of five per cent or 0.8 percent. The Court held that because of the trial judge's analytical errors, her order must be set aside, and the analysis conducted afresh.

Yes.

Under s. 134(1)(a) of the CJA, the Court may “make any order or decision that ought to or could have been made by the court…appealed from”. The record and arguments of the parties allowed the Court to determine the prejudgment interest issues in this case, there were no genuine issues requiring a trial, and it was not in the interests of the parties to return these issues to the trial judge.

The Court held that the respondents had not met their onus to demonstrate that it would be just to reduce the five per cent presumptive rate on the appellants' non-pecuniary damages. They had not provided any evidence of any special circumstances that would justify departing from the presumptive rate of five per cent. Reducing the five per cent presumptive rate in these circumstances would hardly be consonant with the statutory interest scheme's purposes.

The Court concluded that, having regard to the factors under s. 130(2) of the CJA, the appellants had met their onus to demonstrate that there were special circumstances in this case to justify increasing the presumptive prejudgment interest rates on their awards of non-pecuniary and past pecuniary damages. In the Courts view, it was just in the circumstances of this case that the presumptive rates not be applied.

Henry v Zaitlen, 2024 ONCA 614

[Roberts, Coroza and Gomery JJ.A.]

COUNSEL:

J. Dobson and M. Hodgins, for the appellants

F. McLaughlin, S. Sugar and C. Windsor, for the respondent

D. Embury, B. Di Domenico and S. Bailey, for the intervenor, Ontario Trial Lawyers Association

FACTS:

The appellants appealed the trial judge's prejudgment interest order of 1.3% on their non-pecuniary damages for personal injury. They sought to set aside the provisions of that order and requested that the court fix the prejudgment interest rate on non-pecuniary damages at 5%. The appellants put forward the following grounds of appeal:

i) the trial judge misinterpreted and misapplied this court's decision in MacLeod;

ii) the trial judge failed to consider and apply the governing principles articulated by the Court in Andani et al and the provisions of 130(1) and (2) of the CJA; and

iii) the trial judge misdirected himself on s. 258.3(8.1) of the Insurance Act, and its significance.

The respondent maintained that the trial judge made no reversible error and that the trial judge's interpretation of MacLeod was correct that the 5% rate under s. 128(2) of the CJA no longer reflects the reality of market interest rates and would unjustly overcompensate the appellants, which would be inconsonant with the purpose of prejudgment interest.

ISSUES:

Did the trial judge err in his interpretation of the language and purposes of the statutory scheme of presumptive statutory prejudgment interest rates?
Did the trial judge fail to consider all s. 130(2) factors in the exercise of his discretion?
Did the trial judge err in his interpretation of “changes in market interest rates”?

HOLDING:

Appeal allowed.

REASONING:

Yes.

The trial judge erred in his interpretation of the CJA and in substituting the presumptive prejudgment interest rate of 5% with a new rate based on current average market rates. The Court stressed the importance of statutory interpretation and interpreted the plain language of the CJA as creating a presumptive or “default” 5% prejudgment interest rate for non-pecuniary damages. This presumption is “baked” into section 128(2) of the CJA. The trial judge's failure to give effect to the applicable rules of interpretation in considering this provision was considered by the Court to be an analytical error.

The Court rejected the submission of the respondents that Cobb determined there was no presumptive statutory prejudgment interest rate because Cobb contemplated two default rates of prejudgment interest. The respondents' submission that “s. 128(2) creates an exception from this [s. 128(1)] default rate of prejudgment interest for damages for non-pecuniary loss” was also rejected. While the Court in Cobb found that there is a presumptive entitlement to prejudgment interest at the statutory rate, this is not an absolute or vested entitlement to prejudgment interest or to the 5% statutory rate of interest for non-pecuniary loss. This presumption places the onus squarely on the party seeking to depart from the prima facie entitlement to the presumptive statutory interest rate to demonstrate why the court should exercise its discretion to do so.

The Court highlighted a mandatory list of factors under s. 130(2) that must be taken into account on whether to award pre-judgment interest for the purposes of 130(1):

a) changes in market interest rates;

b) the circumstances of the case;

c) the fact that an advance payment was made;

d) the circumstances of medical disclosure by the plaintiff;

e) the amount claimed and the amount recovered in the proceeding;

f) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and

g) any other relevant consideration. [Emphasis added.]

The Court stressed that while a court may exercise its discretion under s. 130(1) of the CJA to depart from the presumptive rate of interest, it is not mandatory that it do so, and it should only do so where “it considers it just to do so”.

Yes.

The Court rejected the trial judge's interpretation that MacLeod highlights a particular factor which courts must consider when deciding whether and how to exercise its discretion under section 130(2) of the CJA. Rather, the Court in MacLeod, as in this case, found that the trial judge incorrectly applied the prejudgment interest rate discretion granted under section 130(1) of the CJA by failing to consider the mandatory factors listed under section 130(2) of the CJA.

Based on this error, the Court found that the trial judge erred in deviating from the 5% presumptive prejudgment interest rate and emphasized the importance of considering the mandatory factors in section 130(2) when determining prejudgment interest rates under section 130(1).

Yes.

The trial judge erred in his interpretation of the meaning of “changes in market interest rates” by equating “market interest rates” under s. 130(2) of the CJA with prejudgment interest rates as defined under s. 127(1) and the Consumer Price Index. The provisions set out in the CJA do not support this interpretation, and there is no evidence that either equated to “market interest rates” or reflected “changes in market interest rates”. Since “market interest rates” is not a defined term in the CJA, the Court interpreted this as a legislative intention of a broad term.

Further, the Court quoted Triten, which stands for the proposition that when attempting to justify a departure from the statutory default of 5% prejudgment interest, the onus is on the person relying on changes in market interest rates to lead evidence relating to them. The party must provide adequate evidence to demonstrate that there was special or unusual “changes in the market rates”, despite the prima facie entitlement to prejudgment interest at the 5% rate and having regard to the mandatory criteria under s. 130(2) of the CJA and all other relevant considerations.

The Court stated that parties are at liberty to agree on what constitutes “market interest rates” or “changes in market interest rates”, including that they are equivalent to bank rates or prejudgment interest rates under the CJA, or any other rates, and to changes in those rates, for the purpose of setting the prejudgment interest rate in a proceeding and the exercise of the discretion under s. 130(1) of the CJA. However, any such agreement does not alter each term's statutory meaning. In the absence of such an agreement, the party seeking to have the court exercise its discretion to deviate from the presumptive interest rate in issue must produce evidence of rates available in the market over the relevant period.

The Court held that, in this case, the respondent failed to provide adequate evidence of changes in the market interest rates. The trial judge erred in his departure from the 5% presumptive rate on the sole basis that there were “changes in market interest rates”, where the evidence to demonstrate this was lacking.

Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619

[Miller J.A.]

COUNSEL:

N. Rouleau, for the appellants/responding parties

E. Atkinson and R. Koilpillai, for the respondent/responding party

W. Rankin and A. Gupta, for the proposed intervener Canadian Lawyers for International Human Rights

J. Nieuwenburg, for the proposed intervener Fair Vote Canada

D. Wright, C. Bryden and R. Jones, for the proposed intervener The Ontario Federation of Labour

S. Tenai and M. Patterson, for the proposed intervener Animal Protection Party of Canada

A. Honickman, for the proposed intervener Canadian Constitution Foundation

S. Choudhry and M. Pal, for the proposed intervener South Asian Legal Clinic of Ontario

V. Sharma, for the proposed intervener Samara Centre for Democracy

D. Baker, for the proposed intervener Democracy Watch

M. Nam, L. Johnson and A. Cai, for the proposed intervener Urban Alliance on Race Relations

T. Brook and S. McCalla, for the proposed intervener The Apathy Is Boring Project

T. Lie and M. Moktar, for the proposed intervener Women's Legal Education and Action Fund Inc.

E. Krajewska and B. Studniberg, for the proposed intervener British Columbia Civil Liberties Association

M. Daniel, for the proposed intervener Aboriginal Council of Winnipeg

FACTS:

Thirteen groups brought motions for leave to intervene in a proceeding that challenged the constitutionality of Canada's single member plurality electoral system.

The appellants challenged various provisions of the Canada Elections Act as inconsistent with both ss. 3 and 15(1) of the Charter. The application was dismissed, and the applicants have appealed to the Court.

ISSUES:

Should leave to intervene as a friend of the court be granted?

HOLDING:

Motions granted in respect of the Aboriginal Council of Winnipeg, the Canadian Lawyers for International Human Rights, the Canadian Constitution Foundation, the South Asian Legal Clinic of Ontario, the Fair Vote Canada, The Women's Legal Education and Action Fund.

Motions dismissed in respect of the Animal Protection Party of Canada, the British Columbia Civil Liberties Association, Democracy Watch, Ontario Federation of Labour, Samara Centre for Democracy, The Apathy is Boring Project, and Urban Alliance on Race Relations.

REASONING:

The Court noted that the appellant consented to all proposed interventions and that the respondent took no position on the proposed interventions, provided that certain terms were imposed on their participation. The Court held that the consent and lack of opposition communicated to the Court that in the parties' estimation, each group satisfied the test for leave to intervene. However, the Court affirmed that the determination on who should be permitted to intervene must ultimately be made by the Court.

The Court held that in determining leave to intervene as a friend of the court, it will generally consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada.

The Court further noted that central to the test in Peel is whether the proposed intervener will likely make a useful contribution to the litigation. The Court stated that although previous cases have identified three factors as helpful to determining whether an applicant will likely make a useful contribution, the presence or absence of any of them is not determinative: (1) the applicant has a real, substantial, and identifiable interest in the subject matter of the proceeding; (2) the applicant has an important perspective distinct from the immediate parties; or (3) the applicant has special expertise: Bedford v. Canada (Attorney General). These are non‑exclusive factors in the service of answering the ultimate question: will the applicant likely make a useful contribution.

The Court held that a constitutional challenge to the electoral system necessarily has a wide impact and it was to be expected that a great many organizations could plausibly claim a real and substantial interest in the subject matter. However, even where these criteria are met, it is nevertheless necessary – particularly where there are so many proposed interveners, and so many aligned on one side – to deny intervenor status to those proposed intervenors which have not established that they have a distinct perspective and will not merely duplicate the submissions of others.

The Court was of the view that the Aboriginal Council of Winnipeg, the Canadian Lawyers for International Human Rights, the Canadian Constitution Foundation, the South Asian Legal Clinic of Ontario, the Fair Vote Canada, and the Women's Legal Education and Action Fund all intended to offer unique perspectives that would be useful to the court.

The Court felt that the remaining groups – the Animal Protection Party of Canada, the British Columbia Civil Liberties Association, Democracy Watch, Ontario Federation of Labour, Samara Centre for Democracy, The Apathy is Boring Project, and Urban Alliance on Race Relations – proposed submissions that all suffered from the same defect of essentially repeating the submissions of the appellants.

SHORT CIVIL DECISIONS

Ash v. Ontario (Chief Medical Officer), 2024 ONCA 617

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

COUNSEL:

J. A. in person

J. Saad for the respondent

Keywords: Civil Procedure, Orders, Setting Aside or Varying, Vexatious Litigation, Appeals, Extension of Time, Rules of Civil Procedure, rr. 2.1, 59.06(2)(a)

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.

Court Of Appeal Summaries (August 12 – 16, 2024)

Contributor

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615

Henry v Zaitlen, 2024 ONCA 614

Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619

Ash v. Ontario (Chief Medical Officer), 2024 ONCA 617

CIVIL DECISIONS

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

Aubin v. Synagogue and Jewish Community Centre of Ottawa (Soloway Jewish Community Centre), 2024 ONCA 615

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

Henry v Zaitlen, 2024 ONCA 614

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

SHORT CIVIL DECISIONS

Ash v. Ontario (Chief Medical Officer), 2024 ONCA 617

COUNSEL:

Litigation, Mediation & Arbitration

Contributor

Canada

Court Of Appeal Summaries (August 12 – 16, 2024)

Contributor

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

CIVIL DECISIONS

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

COUNSEL:

FACTS:

ISSUES:

HOLDING:

REASONING:

SHORT CIVIL DECISIONS

COUNSEL:

Litigation, Mediation & Arbitration

Contributor

Canada

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email