Court Of Appeal Summaries (May 13 – May 17) - Civil Law - Litigation, Mediation & Arbitration

In Wiener v Strickland, the Ontario Court of Appeal upheld the trial judge's decision dismissing an action against a lawyer for professional negligence in an estate litigation matter.

In Dr. C. Sims Dentistry Professional Corporation v. Cooke, the Court dismissed the appeal, affirming the reasonableness of the duration and geographic scope of the non-competition covenant agreed to as part of the purchase and sale of a dental practice.

Ash v. Ontario was an application to halt mandatory COVID-19 vaccinations for children under 12. The Court dismissed the appeal. The appellant was late seeking leave to appeal and an extension of time was denied because the Court was of the view that the grounds for appeal were weak.

Neighbour's Drug Mart Ltd v Ontario (Ministry of Health and Long Term-Care) is an administrative law decision arising from the revocation of billing privileges under the Ontario Drug Benefit Act.

In Sternberg v. Cresford Capital Corporation, the appeal from the dismissal of a claim on a guarantee of a mortgage was dismissed. There was no guarantee agreement. The box in the registered charging listing a guarantor was filled out in error.

In Ding v. Chen, the Court heard this family law appeal in writing after the appellant failed to attend the oral hearing of the appeal and failed to provide evidence as to why he could not attend.

Civil Decisions

Neighbour's Drug Mart Ltd v. Ontario (Ministry of Health and Long Term-Care), 2024 ONCA 378

Keywords: Administrative Law, Judicial Review, Health Law, Drug Benefits, Ontario Drug Benefit Act, R.S.O. 1990, c. O.10

Wiener v. Strickland, 2024 ONCA 394

Keywords: Torts, Professional Negligence, Solicitors, Wills and Estates, Civil Procedure, Settlements, Releases, Terranata Winston Churchill Inc. v. Teti Transport Ltd. et al., 2020 ONSC 7577, Haider v. Rizvi, 2023 ONCA 354

Sternberg v. Cresford Capital Corporation, 2024 ONCA 377

Keywords: Contracts, Interpretation, Guarantees, Real Property, Agreements of Purchase and Sale of Land, Mortgages, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation, 2021 ONCA 592

Ash v. Ontario (Chief Medical Officer), 2024 ONCA 398

Keywords: Civil, Judicial Review, Mandamus Order, Motion to Quash, Conflict of Interest, Fraud, Courts of Justice Act, RSO 1990, c. C.43, s. 6(1), 110, Judicial Review Procedure Act, RSO 1990, c. J.1, s. 4, Health Promotion and Protection Act, RSO 1990, c. H.7, s. 77.9(1), Rules of Civil Procedure, rr. 2.1, 37.14(1)(c), 59.06(2)(a), 61.03.1(3)(a), 61.03.1(15) Hemchand v Toronto (City), 2016 ONSC 7134, Tran v Office of the Independent Police Review Director, 2023 ONSC 3207, Frey v MacDonald (1989), 33 CPC (2d) 13 (ONCA), Enbridge Gas Distribution Inc v Froese, 2013 ONCA 131, 2363523 Ontario Inc v Nowack, 2018 ONCA 286, Leighton v Best, 2014 ONCA 667, Sutherland Lofts Inc v Peck, 2017 ONCA 803, Currie v Halton Regional Police Services Board (2003), 233 DLR (4th) 657, Foy v Foy (No 2) (1979), 26 OR (2d) 220 (CA), Collins v Ontario, 2017 ONCA 317, Hill v Cambridge (City), 2023 ONCA 164

Dr. C. Sims Dentistry Professional Corporation v. Cooke, 2024 ONCA 388

Keywords: Contracts, Restrictive Covenants, Enforceability, Civil Code of Québec, S.Q. 1991, c. 64, Payette v. Guay inc., 2013 SCC 45, Elsley v. J.G. Collins Ins. Agencies Ltd. [1978] 2 S.C.R. 916, Tank Lining Corp. v. Dunlop Industrial Ltd. (1982), 40 O.R. (2d) 219, MEDIchair LP v. DME Medequip Inc., 2016 ONCA 168, Kerzner v. American Iron & Metal Company Inc., 2018 ONCA 989, Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6, Doerner v. Bliss & Laughlin Industries Inc., [1980] 2 S.C.R. 865

Ding v. Chen, 2024 ONCA 395

Keywords: Family Law, Child Support, Contempt, Civil Procedure

Short Civil Decisions

Naeem v. Bowmanville Lakebreeze West Village Ltd., 2024 ONCA 383

Keywords: Contracts, Repudiation, Real Property, Agreements of Purchase and Sale of Land, Deposits, Forfeiture, Defences, Unconscionability, Equitable Remedies, Relief from Forfeiture, Shah v. Southdown Towns Ltd., 2017 ONSC 5391, Wang v. 2426483 Ontario Limited, 2020 ONSC 3368, Redstone Enterprises Ltd. v. Simple Technology Inc., 2017 ONCA 282, Ching v. Pier 27 Toronto Inc., 2021 ONCA 551, Azzarello v. Shawqi, 2019 ONCA 820, leave to appeal refused [2019] S.C.C.A. No. 521, Rahbar v. Parvizi, 2023 ONCA 522

ID Inc. v. Toronto Wholesale Produce Association, 2024 ONCA 381

Keywords: Breach of Contract, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 128

2137073 Ontario Inc. v. Furney, 2024 ONCA 392

Keywords: Civil Procedure, Appeals, Reconsideration, Orders, Variation, Setting Aside, Rules of Civil Procedure, rr. 2.1, 59.06

Byrd v. Stockey, 2024 ONCA 396

Keywords: Civil Procedure, Appeals, Orders, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5), Rules of Civil Procedure, rr. 37.14

CIVIL DECISIONS

Neighbour's Drug Mart Ltd v Ontario (Ministry of Health and Long Term-Care), 2024 ONCA 378

[Brown, Paciocco and Nordheimer JJ.A]

Counsel:

N. M. Abramson and A. Lewis, for the appellant

M. J. Sims and K. Yeretsian, for the respondent

Keywords: Administrative Law, Judicial Review, Health Law, Drug Benefits, Ontario Drug Benefit Act, R.S.O. 1990, c. O.10

facts:

The appellant, Neighbour's Drug Mart Ltd. ("Neighbour's"), appealed, with leave, from the Divisional Court's order dismissing its application for judicial review of the decision of the Executive Officer of the Ontario Public Drug Programs for Ontario (the "Decision"). The Decision terminated Neighbour's Health Network System Agreement ("Operator's Agreement"), revoked its billing privileges under s. 4.1 of the Ontario Drug Benefit Act ("ODBA"), and suspended its entitlement to receive payment under the ODBA.

issues:

Did the Executive Officer and Divisional Court fundamentally misapprehended the record, which disclosed that the majority of the billing issues were attributable to the pharmacy's prior owner?
Did the Executive Officer and Divisional Court impose revocation in circumstances not supported or permitted by the regulatory regime or the Operator's Agreement?
Did the Executive Officer and Divisional Court improperly create a form of absolute liability for pharmacy owners?

holding:

Appeal dismissed.

reasoning:

The application of the regulatory regime to the facts of the case by the Executive Officer and Divisional Court understandably was informed by two factors. First, the regulatory scheme operated on the basis of an honour system that relied on operators not to submit any claims that the operator knew or reasonably ought to have known were false, inaccurate or misleading. Second, Neighbour's was a corporate operator. As such, its owner and directors were obliged to ensure that the corporation's managers and other employees complied with regulatory requirements. The Court found that there was no misapprehension on the part of the Divisional Court or Executive Officer, as the conclusions were based on an accurate understanding of the facts.

2 & 3. No.

The Court found that the revocation of the Operator's Agreement was not an unreasonable sanction in the circumstances, nor did it amount to a form of absolute liability. The decision was part of a regulatory system that operated based on trust, and was primarily due to Mr. S's failure, in his capacity as owner and director of Neighbour, to ensure that false, inaccurate, or misleading claims were not submitted by the company's manager and employees over a significant period.

Neighbour argued against this revocation, citing section 11.2 of their Operator's Agreement, which involved notification and consent protocols for changes in control or sale of assets. However, the Court found that their argument was not supported by the agreement's language nor by subsequent consents for change in control, which implicated that new owners would assume all rights and liabilities, including those from past misconduct. Ultimately, the Court found no error in the decision to revoke the agreement.

Wiener v. Strickland, 2024 ONCA 394

[van Rensburg, Sossin and Dawe JJ.A.]

Counsel:

J. Vale and D. Fogel, for the appellant

D.B. Williams, for the respondents

facts:

This appeal arose out of a solicitor's negligence claim. The respondents acted as counsel for the appellant in an estates dispute. That dispute resulted in a settlement. The appellant subsequently took the view that he had not authorized the respondent to agree to the terms of the settlement. His specific concern was over whether the settlement preserved his ability to sue the lawyer who had represented the estate, Mr. G. The appellant then commenced litigation against the respondents. He also sought to resile from the settlement in the original estates dispute, but further litigation to enforce the settlement was ultimately resolved through a consent order. The trial judge found that the respondent did not bind the appellant to any of the points in the settlement document without his instructions, thus bringing the solicitor's negligence action to an end. The appellant appealed.

issues:

Did the trial judge err in concluding that nothing in the settlement document precluded the appellant from suing Mr. G?
Did the trial judge err in concluding that she could not determine the limitation period and that, in any event, it would not have barred the appellant from suing Mr. G?

holding:

Appeal dismissed.

reasoning:

1. No.

The trial judge committed no error in concluding that the settlement document at issue in no way precluded such subsequent litigation against Mr. G. The terms of the document made no reference to Mr. G. Similarly, the fact that the settlement document envisioned releases being signed also had no bearing on this question. The document referred only to releases as against the estate and the estate trustees, and both Ms. F (solicitor for the appellant's brother) and the respondent confirmed in their evidence that the issue of Mr. G's inclusion in any release was never discussed, negotiated, or intended.

The appellant argued that, irrespective of whether Mr. G was referred to, the reference to a "standard form release" would have included a "no claims over" clause unless specifically carved out, relying on Terranata Winston Churchill Inc. v. Teti Transport Ltd. et al. In that case, Vella J. observed, "[i]n my view, claims over/contribution and indemnity clauses are usual elements of a standard general release. The Court will therefore imply these types of provisions as terms of standard general releases, unless expressly carved out or narrowed by the parties prior to reaching a settlement." In Haider v. Rizvi, however, this Court clarified that the intention of Vella J. in that analysis "was not to default to a standard form of release, but rather to determine the objective intentions of the parties based on the settlement they had concluded."

The Court noted that in this case, the objective intention of the parties was to require the beneficiaries to sign releases releasing the estate and the estate trustees. Not only was the specific form of the release (and whether it would include a no claims over clause) not discussed at the time of settlement, Ms. F was clear in her evidence that she never intended a release of Mr. G. If she had insisted on a release that had the effect of precluding a claim against Mr. G, the respondent's evidence was clear that the release of Mr. G was never part of the settlement and the motion to enforce the settlement would have failed. Against this backdrop, the appellant abandoned his opposition to the motion to enforce because no such release was being insisted upon.

2. No.

The Court held that the fact that Mr. G may have had defences to such subsequent litigation, if brought, including a potential limitations argument, had no bearing on whether such litigation was left open by the settlement document. The trial judge did not err in declining to determine the limitations issue that may arise in litigation against Mr. G if such litigation were pursued by the appellant. The trial judge also did not err in concluding that a potential limitations defence would in no way preclude the appellant from pursuing litigation against Mr. G if he wished.

Sternberg v. Cresford Capital Corporation, 2024 ONCA 377

[Roberts, Trotter and George JJ.A.]

Counsel:

S. Block and J. Silver, for the appellant

G. J. Tighe and A. Farley, for the respondent

facts:

This appeal arose out of the appellant's sale of a parcel of land to the respondent as part of the respondent's development project. The stated consideration for the sale in the agreement of purchase and sale was $5 million: $1 million to be paid on closing and a vendor take back mortgage in the amount of $4 million.

It was common ground that the respondent paid a premium on the property. The respondent assigned the agreement of purchase and sale and vendor take back mortgage to a single purpose corporation, 66 Charles Street Limited. 66 Charles Street Limited defaulted on the mortgage before the entire $4 million was paid to the appellant. The respondent was named as guarantor of the vendor take back mortgage in the electronic registration of the mortgage.

The appellant retook possession of the property and sold it for about $3.3 million, leaving a deficit of about $1 million owing under the vendor take back mortgage, which continued to accrue interest. He commenced an action against the respondent as guarantor for payment of the monies owing under the vendor take back mortgage, including interest and costs. The respondent defended the action on the basis that it never agreed to guarantee the vendor take back mortgage and that its name appears in error on the electronic registration. In its counterclaim, it requested rectification of the electronic registration to remove its name as guarantor.

The parties brought competing motions for summary judgment. The motion judge determined that no guarantee agreement between the appellant and the respondent ever existed and that the inclusion of the respondent as guarantor on the registered vendor take back charge was an error. She therefore granted the respondent's motion for summary judgment, dismissed the appellant's cross-motion, and dismissed the appellant's action with costs. The appellant appealed the dismissal of his action.

issues:

Did the motion judge fail to consider the relevant agreements cohesively as part of a larger transaction, misinterpret the relevant agreements, come to unreasonable and incorrect conclusions about them, rely on irrelevant and subjective evidence, and ignore the factual matrix?
Did the motion judge err by failing to hold the respondent liable for the guarantee on the electronic registration?

holding:

Appeal dismissed.

reasoning:

1. No.

The motion judge's interpretation of the parties' non-standard agreements was entitled to significant deference on appeal, absent an extricable error of law or palpable or overriding error of fact. Cases where a question of law can be extricated from the interpretation process are rare. The appellant did not meet this high bar for appellate intervention.

The motion judge reviewed all the agreements in the context of the relevant factual matrix and applied the correct legal principles of contractual interpretation. In the Court's view, she determined that there was no guarantee agreement between the appellant and the respondent. She disagreed with the appellant's interpretation of s. 5 of Schedule A to the agreement of purchase and sale, repeated on appeal, that the respondent agreed to remain liable until the vendor take back mortgage had been repaid. The Court agreed with the motion judge's interpretation, borne out by the plain language of the agreement of purchase and sale, that the definition of the completion of the transaction was the closing date, and not when the full amounts owing under the mortgage had been repaid, that the respondent agreed to remain liable under the agreement of purchase and sale only until the closing date of the transaction, and that the respondent's liability under the agreement of purchase and sale consisted of the payment of $1 million and the granting of the vendor take back mortgage.

The Court also agreed with her conclusion that the assignment agreement between the respondent and 66 Charles Street Limited (to which the appellant was not a party) contained no provision that the respondent remained liable on the vendor take back mortgage after closing. Given the motion judge's finding, upheld on appeal, that the respondent was not a guarantor in this case, the standard charge terms, which outlined the obligations of a guarantor and were incorporated by reference in s. 1(i) to Schedule A of the agreement of purchase and sale, did not apply.

2. No.

The appellant did not argue that this finding was not open to the motion judge on the record. He submitted that she erred by: 1) accepting the respondent's evidence that its inclusion as guarantor was an error; and 2) failing to give effect to the alleged representation made by the respondent's legal representative to the appellant's legal representative that the respondent would be a guarantor of the vendor take back mortgage, on which the appellant submitted he relied to close the transaction.

The Court did not accept these submissions, which ignored the motion judge's correct conclusion that there was no guarantee agreement. Given that there was no guarantee agreement, it logically followed that the inclusion of the respondent's guarantee in the electronically registered vendor take back agreement was an error, as it was inconsistent with the parties' agreement as reflected in their agreement of purchase and sale. To hold otherwise would rewrite the bargain between the parties and bestow a windfall on the appellant. There was no question that, other than the brief email exchange between the appellant's lawyer and the law clerk of the respondent's lawyers, there was no evidence of discussions or communications between the appellant and the respondent that a guarantee agreement was required as part of the consideration for the purchase.

As the motion judge found, the appellant was not left vulnerable and received security over the property and a premium for the property. The appellant was obligated to close the transaction on the closing date upon the purchaser's payment of $1 million in cash and the granting of the vendor take back mortgage in accordance with the agreement of purchase and sale.

Ash v. Ontario (Chief Medical Officer), 2024 ONCA 398

[Gomery J.A. (Motions Judge)]

Counsel:

JA, acting in person

V. Glasser and M. Saad, for the respondent

facts:

In 2022, the appellant applied for judicial review, seeking a mandamus order for the Chief Medical Officer of Health of Ontario (CMOH) to halt COVID-19 vaccinations for children under twelve years of age. On July 22, 2022, the respondent's motion to quash was granted, as the Motion Judge found the application could not succeed due to the lack of conditions precedent and the Court's lack of authority to direct the CMOH's discretionary powers. The appellant's subsequent review motion was dismissed on August 24, 2023. Allegations of conflict of interest involving the CMOH and Pfizer funding led to a motion to set aside the Review Panel's decision, which was dismissed on October 20, 2023, under Rule 2.1. Further motions by the appellant were dismissed, culminating in the notice of motion filed on May 1, 2024, seeking leave to appeal.

issue:

Should the appellant be granted an extension of time to seek leave to appeal?

holding:

Appeal dismissed.

reasoning:

No.

JA was not granted an extension of time to seek leave to appeal the Divisional Court's Rule 2.1 dismissal. JA did not act promptly after being advised on November 20, 2023, that his motion was not accepted for filing and that he needed to seek leave to appeal. He delayed more than five months before filing the motion for leave to appeal on May 1, 2024, without providing a compelling explanation for this delay, which weighed against granting the extension.

The Court did not have the authority to simply transfer the motion, as doing so would bypass the established procedure for obtaining leave to appeal. The appellant was required to file a motion for leave to appeal within 15 days of the order being challenged or seek an extension of time. The administrative judge had already informed JA that he could bring a motion for leave to appeal and seek an extension of time in the Court of Appeal. The Court denied the transfer request.

The Court did not directly address the request for an oral hearing and interim order, as the primary issue was whether to grant an extension of time to file a motion for leave to appeal. The Court focused on the merits of the proposed appeal, finding that JA's grounds for appeal were without merit. The first ground contended that Justice Corbett improperly dismissed the motion under Rule 2.1 based solely on its lack of merit. The Court agreed with Justice Corbett's determination that the motion was frivolous and vexatious, thus justifying the Rule 2.1 dismissal. The second ground equated an allegation of conflict of interest with fraud, but the Court found that this did not address the fundamental legal deficiencies in JA's original application for judicial review, such as lack of standing and the absence of a legal basis for the mandamus order. The Court found that, given the lack of merit in the proposed appeal, the request for an oral hearing and interim order was moot.

Dr. C. Sims Dentistry Professional Corporation v. Cooke, 2024 ONCA 388

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

S. F. Gleave and C. Koblinksy, for the appellants

B. L. Yellin and B. Powell, for the respondent

facts:

Pursuant to an agreement of purchase and sale (the "Share Purchase Agreement"), Dr. S, through his corporation Dr. S Professional Dentistry Corporation, purchased all of the shares of the dentistry practice of the appellant Dr. C (the "Practice") for $1.1 million in July 2017. Dr. C had operated the Practice in Hamilton, Ontario since 1987. He had relocated the Practice in 2005 to its current address in Hamilton (the "Premises").

As part of the sale, Dr. C agreed to work in the Practice as an associate for a minimum period of two years, subject to termination of the association by either party on 90 days' notice. Dr. C also agreed to a non-solicitation/non-competition provision (both as part of the Share Purchase Agreement and in the form of a stand-alone agreement on identical terms) that contained a clause prohibiting him from directly or indirectly engaging in the practice of dentistry, or permitting his name to be used in such a practice, for a period of five years following his association with the Practice within a radius of 15 km of the Premises (the "Non-competition Covenant"). Finally, the parties agreed that Dr. S would rent the Premises from Dr. C's corporation, 6326471 Canada Inc., pursuant to a lease (the "Lease"), which contained an option to purchase and a right of first refusal in favour of Dr. S.

On December 19, 2019, Dr. S gave 90 days' notice of termination of the parties' association, and Dr. C stopped working in the Practice at that time. A few months later, through his counsel, Dr. C communicated his intention to work at a dental practice 3.3 km away from the Premises (the "Stonehill Practice"), taking the position that the Non-competition Covenant was unenforceable. He began working at that practice in November 2020. Dr. S objected and commenced an action in the Superior Court against Dr. C and the Stonehill Practice. After an interlocutory injunction was issued, Dr. C stopped working at the Stonehill Practice in April 2021. From August 2021 until April 2022, Dr. C worked in a dentistry practice in Simcoe.

The issues at trial concerned the enforceability of the Non-competition Covenant, the 90-day termination clause (and whether Dr. C's association with the Practice was as an employee or dependent or independent contractor and had been effectively terminated), and the option to purchase and right of first refusal in the Lease. All of the issues were decided in Dr. S's favour. Dr. C appealed.

issues:

Did the trial judge err in reversing the burden of proof?
Did the trial judge err in holding that the duration of the Non-competition Covenant was reasonable?
Did the trial judge err in finding that the geographic scope of the Non-competition Covenant was reasonable?

holding:

Appeal dismissed.

reasoning:

1. No.

The trial judge did not err in citing Payette as a relevant and binding authority. Payette has been followed by the Court in MEDIchair LP, where Feldman J.A., citing Payette, stated at para. 33 that, "courts will give more scrutiny to the reasonableness of a restrictive covenant in the employment context, while applying a presumption of validity to such clauses where they have been negotiated as part of the sale of a business". The Court further iterated that the trial judge engaged in a comprehensive review of the reasonableness of the Non-competition Covenant, that did not depend for its determination on the burden of proof.

Parties to a commercial agreement for the purchase and sale of a business are best placed to determine what is reasonably required to protect the purchaser's interest in the goodwill. This is consistent with statements that restrictive covenants in commercial transactions which are intended to protect a purchaser's interest in the goodwill of the acquired business attract less scrutiny than restrictive covenants in employment contracts: see Shafron, at para. 23; Elsley, at p. 924.

Accordingly, the Court noted that the trial judge was correct to recognize the central importance of the commercial context for the Non-competition Covenant. Dr. C provided Dr. S with a valuation, which had been prepared for the benefit of prospective purchasers, that among other things, valued the goodwill of the Practice and anticipated a five-year restrictive covenant covering a reasonable radius. The parties' letter of intent specified that there would be a restrictive covenant of five-years for a 15 km radius, and the specifics of the non-solicitation/non-competition obligations of Dr. C were set out in the Share Purchase Agreement and the standalone document he signed.

The trial judge also properly considered as part of the commercial context the fact that the parties were represented by legal counsel and had equal bargaining power when they negotiated the terms of the transaction, and the evidence of Dr. C's solicitor that he had seen nothing wrong with the scope and duration of the Non-competition Covenant at the time the parties entered the transaction. In these circumstances, where the parties' agreement is the best and most reliable expression of their joint intention, the Court stated that it made sense to treat the Non-competition Covenant as presumptively legal.

2. No.

Although courts "regularly find" restrictive convents with a duration of five years to be reasonable, "[e]verything depends on the nature of the business, and each case must be assessed in light of its own circumstances": Payette, at para. 64. The trial judge accepted Dr. S' evidence that the five-year period reflected the reality that it takes several visits for a patient to build a trusting relationship with their dentist, and that for those who see their dentist annually, it will take a long time for the relationship to build.

Whether or not Dr. C expected to work in the Practice and to retire within three to five years, and whether or not Dr. S understood that this was his expectation, the deal that they concluded had not provided for any guaranteed period of association (as even the planned two-year period was subject to termination on notice) or for Dr. S to retire within a certain period of time. In any event, irrespective of Dr. C's retirement or other plans, he had sold the Practice, including its goodwill, to Dr. S. The issue was the reasonableness of the Non-competition Covenant in protecting the business that had been sold from competition by Dr. C, both in his continuing to work as a dentist, and otherwise in engaging in activities that would trade on the goodwill of the business. The purpose of a restrictive covenant is to protect the goodwill of a business that is sold from being devalued by the vendor's own actions – in essence to ensure that the vendor does not derogate from his grant. Goodwill encompasses not only the existing customer base but also the ability to attract new patients from within the area served by the business or its "marketplace": see Tank Lining, at p. 226.

3. No.

As a general rule, the territory to which a reasonable restrictive covenant applies is limited to that in which the business being sold carries on its trade or activities as of the date of the transaction: Payette, at para. 65.

The trial judge was required to determine whether the geographic scope of the Non-competition Covenant was reasonable, not whether it mapped exactly to the trading area that was described in the valuation. The valuation itself contemplated a five-year restrictive covenant over a "reasonable radius". The Non-competition Covenant restricted where Dr. C could locate to practice dentistry. The Court noted that it is not uncommon for the territorial scope of such a restrictive covenant to be defined in terms of a radius, which reflected how far a customer might be willing to travel to access services. The trial judge noted that a 15 km radius had been considered appropriate in other cases involving dental practices, and that Dr. C had signed a restrictive covenant with a 15 km radius when he worked in the Simcoe practice. In finding the scope of the Non-competition Covenant to be reasonable, the trial judge observed that it was necessary to include Stoney Creek (which is part of Hamilton) and Ancaster, which were areas served by the Practice.

The Court also disagreed that the trial judge erred in finding that the 15 km radius was reasonable when it "swept in" the protection of Dr. S' other businesses, including those he acquired after purchasing the Practice. In determining whether the geographic scope of the Non-competition Covenant was reasonable, the trial judge focused on the marketplace of the Practice that was sold, not on Dr. S' other business interests.

Ding v. Chen, 2024 ONCA 395

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

No one appearing for the appellant

V. Pilnitz, for the respondent Y.X.D.

J. Hyndman, for the respondent assignees Toronto Employment & Social Services and the Ministry of Children, Community and Social Services

Keywords: Family Law, Child Support, Contempt, Civil Procedure

facts:

The appellant had two appeals scheduled before the panel on April 26, 2024. The first appeal was from an order dismissing his motion to change child support. The second appeal was from an order imposing penalties for contempt.

The appellant requested an adjournment the day before the hearing and did not appear on the appeals, advising that he was hospitalized and unable to attend by video.

At the hearing, the panel made an order requiring the appellant to serve and file, within seven days, evidence demonstrating that he was unable to attend the hearing because he was hospitalized. If he did not do so, the panel would decide the appeal based on the written materials.

The appellant did not comply with the Court's order. The Court did not receive any evidence from the appellant that he was unable to attend the hearing due to hospitalization.

Both appeals were decided based on the written materials filed by the parties, including the materials filed by the appellant. After reviewing and considering the materials, the two appeals were dismissed.

issue:

Did the motion judge err in dismissing the motion to change and finding the appellant in contempt?

holding:

Appeals dismissed.

reasoning:

No.

The motion judge dismissed the motion to change because the appellant failed to provide the financial disclosure previously ordered by the court and had substantial outstanding unpaid support and costs obligations.

It was not an error for the motion judge to hear the motion in the appellant's absence as the motion judge was satisfied that the appellant was properly served.

Furthermore, the appellant raised issues of procedural fairness, arguing that he did not have an opportunity to make submissions at the contempt and penalty hearings. However, the motion judge was satisfied that the appellant was properly served, and, in the circumstances, it was appropriate for to hear and consider the motions in the appellant's absence.

The appellant had a history of failing to comply with court orders, failing to make support and cost payments, and failing to attend court proceedings that he initiated.

SHORT CIVIL DECISIONS

Naeem v. Bowmanville Lakebreeze West Village Ltd., 2024 ONCA 383

[van Rensburg, Sossin and Dawe JJ.A.]

Counsel:

A. Lifshitz, for the appellant

J. D. McConville and R. Khemraj, for the respondent

ID Inc. v. Toronto Wholesale Produce Association, 2024 ONCA 381

[van Rensburg, Sossin and Dawe JJ.A.]

Counsel:

J. Zibarras, R. MacGregor, and A. Cutinha, for the moving party (M54934)/responding party (M54984)

David E. Greenwood and Christopher McClelland, for the responding party (M54934)/moving party (M54984)

Keywords: Breach of Contract, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 128

2137073 Ontario Inc. v. Furney, 2024 ONCA 392

[Roberts, Coroza and Gomery JJ.A.]

Counsel:

A.F. and M.F., acting in person

R. Atkinson, E. Bisceglia and J.D. Sobel, for the responding parties

Keywords: Civil Procedure, Appeals, Reconsideration, Orders, Variation, Setting Aside, Rules of Civil Procedure, rr. 2.1, 59.06

Byrd v. Stockey, 2024 ONCA 396

[van Rensburg, Sossin and Dawe JJ.A.]

Counsel:

D.B., acting in person

S. Reddington, for the responding party/respondent

Keywords: Civil Procedure, Appeals, Orders, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 7(5), Rules of Civil Procedure, rr. 37.14

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 (May 13 – May 17)

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