Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 20, 2024.
In Amalgamated Transit Union, Local 113 v. Ontario, the Court dismissed the appeal, agreeing with the application judge's conclusion that the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which takes away TTC workers' right to strike, violates their 2(d) Charter right to freedom of assembly, which violation was not justified under s. 1 of the Charter. Justice Nordheimer dissented.
In Walpole v. Crisol, a child was seriously injured by a dog bite to the face. The parents sued their hosts who owned the dog, and the landlord who owned the home (the hosts were tenants). By way of summary judgment, the claim of negligence and occupiers' liability against the landlord was dismissed. The Court upheld that decision.
MGW-Homes Design Inc. v. Pasqualino deals with the proper appeal route from an adjudicator's determination under the Construction Act. It is to the Divisional Court under s. 71 of the Construction Act.
In Zaidi v. Syed Estate, the Court dismissed an appeal from the application judge's refusal to enforce a settlement agreement on the basis of undue influence, unconscionability and misrepresentation.
Fung Loy Kok Institute of Taosim v. Municipal Property Assessment Corporation is a property tax case. The issue was whether the sites where tai chi classes were being held were "places of worship", exempting the landowner from property tax payable. The Court dismissed the appeal, agreeing with the courts below that there was no tax exemption available.
In World Medpharm Inc. v. York Region Standard Condominium Corporation No. 1279, the Court dismissed a motion to stay, pending appeal, an order that enforces the terms of a condo declaration and prevents the appellants from operating a pharmacy at the condominium complex.
In One Clarendon Inc. v. Finlay, an appeal was dismissed for failure to comply with an order to post security for the costs of the appeal.
Table of Contents
Civil Decisions
Walpole v. Crisol, 2024 ONCA 400
Keywords: Torts, Negligence, Occupiers' Liability, Civil Procedure, Partial Summary Judgment, Dog Owners' Liability Act, R.S.O. 1990 c. D.16, s.3(1), Occupiers' Liability Act, R.S.O. 1990, c. O.2, s.3(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s.134(1)(a), Hudyma v. Martin, [1991] O.J. No. 1184, Elbaum v. York Condominium Corporation No. 67, 2014 ONSC 1182, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27
World Medpharm Inc. v. York Region Standard Condominium Corporation No. 1279, 2024 ONCA 417
Keywords: Real Property, Condominiums, Permitted Uses, Declarations, Compliance, Civil Procedure, Stay Pending Appeal, Condominium Act 1998, S.O. 1998, c. 19, s. 134, Rules of Civil Procedure, r. 63.02(b), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696
One Clarendon Inc. v. Finlay, 2024 ONCA 414
Keywords: Civil Procedure, Appeals, Orders, Security for Costs, Enforcement, Striking Appeal, Rules of Civil Procedure, r 61.06(2), One Clarendon Inc. v. Finlay, 2024 ONCA 323, 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210, 9383859 Canada Ltd v. Saeed, 2023 ONCA 627
Zaidi v. Syed Estate, 2024 ONCA 406
Keywords: Wills and Estates, Contracts, Real Property, Unjust Enrichment, Defences, Undue Influence, Unconscionability, Misrepresentation, Remedies, Rescission, Civil Procedure, Settlements, Enforcement, Procedural Fairness, Applications, Trial of Issues, Singh v. Trump, 2016 ONCA 747, Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 86, Leslie v. Mississauga (City) (2006), 81 O.R. (3d) 415, Cashbloom Canada, ULC v. Ridgeway Design Centre Inc., 2017 ONSC 2994, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9
MGW-Homes Design Inc. v. Pasqualino, 2024 ONCA 422
Keywords: Contracts, Construction, Civil Procedure, Interim Adjudication, Appeals, Jurisdiction, Construction Act, R.S.O. 1990, c. C.30, Construction Lien Act, R.S.O. 1990, c. C.43, Construction Lien Act, 1983, S.O. 1983, c. 6, Mechanics' Lien Act, R.S.O. 1970, c. 267), Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 54 O.R. (3d) 76 (C.A.), TRS Components Ltd. v. Devlan Construction Ltd., 2015 ONCA 294, Pasqualino v. MGW-Homes Design Inc., 2022 ONSC 5632, Courts of Justice Act, R.S.O. 1990, c. C.43, Teepee Excavation & Grading Ltd. v. Niran Construction Ltd. (2000), 49 O.R. (3d) 612 (C.A.), Bird Construction Co. v. C.S. Yachts Ltd. (1990), 38 O.A.C. 147 (C.A.), Durall Construction Ltd. v. W.A. McDougall Ltd. (1979), 25 O.R. (2d) 371
Amalgamated Transit Union, Local 113 v. Ontario, 2024 ONCA 407
Keywords: Labour and Employment, Collective Bargaining Rights, Public Service Employees, Constitutional Law, Freedom of Association, Oakes Test, Toronto Transit Commission Labour Disputes Resolution Act, 2011, S.O. 2011, c.2, Canadian Charter of Rights and Freedoms, ss.1, 2(d), Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, R. v. Oakes, [1986] 1 S.C.R. 103, Ontario English Catholic Teachers Association v. Ontario (Attorney General), 2024 ONCA 101, Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, PSAC v. Canada, [1987] 1 S.C.R. 424, RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, Dunmore v. Ontario (Attorney General), 2001 SCC 94, Alliance des professionnels et des professionnelles de la Ville de Québec c. Procureur général du Québec, 2023 QCCA 626, R. v. Ndhlovu, 2022 SCC 38, U.F.C.W., Local 1518, v. KMart Canada Ltd., [1999] 2 SCR 1083, R. v. K.R.J., 2016 SCC 31, R. v. Michaud, 2015 ONCA 585, Gordon v. Canada (Attorney General), 2016 ONCA 625, leave to appeal refused, [2016] S.C.C.A. No. 444, [2016] S.C.C.A. No. 445, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, Carter v. Canada (Attorney General), 2015 SCC 5, R. v. Sharma, 2022 SCC 39, Canadian Western Bank v. Alberta, 2007 SCC 22, R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, Retail, Wholesale and Department Store Union v. Saskatchewan, [1987] 1 S.C.R. 460
Fung Loy Kok Institute of Taosim v. Municipal Property Assessment Corporation, 2024 ONCA 415
Keywords: Municipal Law, Taxation, Real Property, Exemptions, Places of Worship, Loi sur la fiscalité municipale, RLRQ, c. F-2.1, s. 204, Assessment Act, R.S.O. 1990, c. A.31, s. 3(1), Ontario (Environment and Climate Change), 2019 ONCA 70, Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 494, Re Singh and City of Sudbury (1975), 8. O.R. (2d) 377, Buenavista on the Rideau v. Regional Assessment Commissioner, Region No. 2 (1996), 28 O.R. (3d) 272, Diocese of Toronto Camps (Anglican Church of Canada) v. Municipal Property Assessment Corp. (2004), 246 D.L.R. (4th) 170, Holy Theotokos Convent v. Whitchurch-Stouffville (Town), 2007 CanLII 4780, Les SSurs de La Visitation D'Ottawa v. The City of Ottawa, [1952] O.R. 61, Keewaydin Camps Corporation Canada v. Temagami (Municipality), 2007 CanLII 15800, Institut de taoïsme Fung Loy Kok c. Ville de Montréal, 2021 QCCS 3873, Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon‑Secours, [1994] 3 S.C.R. 3, Ottawa Salus Corp. v. Municipal Property Assessment Corp. (2004), 69 O.R. (3d) 417, Hodkin & Anor, R. (on the application of) v. Registrar-General of Births, Deaths and Marriages, [2013] UKSC 77
Short Civil Decisions
Yan v. Persaud, 2024 ONCA 416
Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c C.43, s. 19(1)(b)
Construction Distribution & Supply Company Inc. v. Continental Casualty Company (CNA Insurance), 2024 ONCA 405
Keywords: Contracts, Interpretation, Insurance, Commercial General Liability, Coverage, Duty to Defend, Zurich Insurance Co. v. 686234 Ontario Ltd., 62 O.R. (3d) 447, (C.A.), Hemlow Estate v. Co-operators General Insurance Company, 2021 ONSC 664, aff'd 2021 ONCA 908, ING Insurance Company of Canada v. Miracle, 2011 ONCA 321
2137073 Ontario Inc. v. Furney, 2024 ONCA 421
Keywords: Civil Procedure, Costs
2137073 Ontario Inc. v. Furney, 2024 ONCA 428
Keywords: Civil Procedure, Orders, Enforcement, Writs of Possession, Stay of Proceedings, Costs, Rules of Civil Procedure, rr. 63.01, 63.02(b), Toronto (City) v Ontario (Attorney General), 142 O.R. (3d) 481, 2018 ONCA 761
CIVIL DECISIONS
Walpole v. Crisol, 2024 ONCA 400
[van Rensburg, Sossin and Dawe JJ.A.]
Counsel:
A. Clausi, I. Mair and M. Giugaru, for the appellants
S. Walsh, for the respondents J.C. and M.C.
Keywords: Torts, Negligence, Occupiers' Liability, Civil Procedure, Partial Summary Judgment, Dog Owners' Liability Act, R.S.O. 1990 c. D.16, s.3(1), Occupiers' Liability Act, R.S.O. 1990, c. O.2, s.3(1), Courts of Justice Act, R.S.O. 1990, c. C.43, s.134(1)(a), Hudyma v. Martin, [1991] O.J. No. 1184, Elbaum v. York Condominium Corporation No. 67, 2014 ONSC 1182, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27
facts:
While visiting the home of the defendants, the appellants' six-year-old daughter was sitting on the floor petting the defendants' dog, Chestnut, when the dog bit her on the face, badly injuring her.
The defendants rented their home from the owners of the property, the respondents, neither of whom were present when the appellants' daughter was bitten.
The appellants commenced an action against the owners of the dog and the respondents. The respondents brought a motion for partial summary judgment, seeking to have the action against them dismissed. The motion judge agreed and dismissed the action as against the respondents.
issue:
Did the motion judge err in concluding that the appellants had not demonstrated that their claim against the respondents presented any genuine issues requiring a trial?
holding:
Appeal dismissed.
reasoning:
No.
Although the motion judge erred in law by concluding that the Dog Owners' Liability Act ("DOLA") barred the respondents from being found liable under the Occupiers' Liability Act ("OLA"), the motion judge also held that even if she was wrong in her interpretation of the DOLA, she would still have granted summary judgment in favour of the respondents.
The Court was satisfied that the record as a whole clarified and explained why the motion judge concluded that the appellants' claim against the respondents did not present any genuine issues that required a trial.
The evidence established that the respondents were absentee landlords of the property where the dog owners resided. The dog's owners only acquired Chestnut sometime after they became the respondents' tenants. Under s. 14 of the Residential Tenancies Act, the respondents could not have prevented their tenants from keeping a dog on the rented property. There was no evidence that the respondents ever assumed any responsibility for Chestnut, or that they asserted any control over who their tenants could choose to invite onto the rented property.
World Medpharm Inc. v. York Region Standard Condominium Corporation No. 1279, 2024 ONCA 417
[Zarnett J.A. (Motions Judge)]
Counsel:
B. Rutherford, for the moving parties 2352711 Ontario Inc., cob as Enhanced Care Pharmacy Thornhill and 2819826 Ontario Inc.
D. Golden and M. Hochberg, for the responding parties World Medpharm Inc. and World Medpharm (2014) Inc., cob as World Pharmacy
C. Dunn, for York Region Standard Condominium Corporation No. 1247
Keywords: Real Property, Condominiums, Permitted Uses, Declarations, Compliance, Civil Procedure, Stay Pending Appeal, Condominium Act 1998, S.O. 1998, c. 19, s. 134, Rules of Civil Procedure, r. 63.02(b), RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Toronto Standard Condominium Corporation No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc., 2014 ONCA 696
facts:
The appellants 2352711 Ontario Inc., cob as Enhanced Care Pharmacy Thornhill and 2819826 Ontario Inc. sought the stay of an order under the Condominium Act that prevents them from operating a pharmacy at York Region Standard Condominium Corporation No. 1247 ("YRSCC 1247"), located on Yonge Street in Markham.
York Region Standard Condominium Corporation No. 1279 ("YRSCC 1279") is located nearby, at 7181 Yonge Street. They were developed in common, as "World on Yonge" by the same developer, who was the Declarant for both. The Declarations for both condominiums provide that a commercial unit may not be used to operate a pharmacy without the consent of the Declarant.
The Declarant entered into an Exclusive Use Agreement dated June 27, 2018, with the responding parties ("Medpharm") which allowed them to be the exclusive operator of a pharmacy within World on Yonge.
From about 2013, 2337636 Ontario Inc. ("233") operated a medical clinic on Yonge Street close to, but not in, either of the condominium buildings. A dispensary pharmacy service was operated on the site by the appellant 2352711 Ontario Inc., operating as Enhanced Care Pharmacy Thornhill ("Enhanced Care").
In March 2022, the appellant 2819826 Ontario Inc. ("281") purchased units in YRSCC 1247 and subsequently leased them to 233 so that it could move the medical clinic into YRSCC 1247. 233 then sublet approximately 10 percent of the area of the units to Enhanced Care so that it could continue the pharmacy and dispensary service from the medical clinic's new location.
In July 2023, Enhanced Care began operating a pharmacy from the area it had sublet within the medical clinic in YRSCC 1247.
The lease from 281 to 233 permits the premises to be used as a medical clinic but prohibits a pharmacy or pharmaceutical dispensary. The sublease from 233 to Enhanced Care provides that 233 will indemnify Enhanced Care if the latter cannot use the premises for their intended use.
Medpharm applied to stop the appellants from operating or permitting the operation of a pharmacy. Asserting a right to enforce the Declaration of YRSCC 1247 on behalf of the Declarant, relying on s. 134 of the Condominium Act, which permits, among others, a declarant to bring an application in the Superior Court for an order for compliance with any provision of the Act or declaration. Section 119 of the Act also requires any owner or occupier of a unit to comply with the condominium's Declaration.
The application judge granted the application under s. 134. On February 27, 2024, the appellants were ordered to immediately cease operating a pharmacy in YRSCC 1247 and/or the building at 7163 Yonge Street, where YRSCC 1247 is located. They were also ordered to immediately come into compliance with the Declaration for YRSCC 1247 including its provisions preventing pharmacy uses without the Declarant's consent.
The moving parties filed a notice of appeal from that order dated March 19, 2024. They moved to stay the order under r. 63.02(b), pending the hearing of the appeal.
issue:
Is granting the stay in the interests of justice?
holding:
Motion dismissed.
reasoning:
No.
The test for staying an order pending appeal requires the court to consider the following three factors: (1) the merits of the appeal to ensure, on a preliminary assessment, that there is a serious question to be tried; (2) whether the moving party would suffer irreparable harm if the stay were refused; and (3) the balance of inconvenience, that is, which of the parties would suffer greater harm from the granting or refusal of the stay pending a decision on the appeal.
Although the grounds of appeal met the relatively low bar of raising a serious issue for appeal, they were not sufficiently strong to overcome the weakness of the appellants' request relating to the other factors relevant to a stay.
There was no evidence of irreparable harm suffered by the moving parties. The appellant 281 owned the units but did not operate the pharmacy or the clinic. There was no evidence of harm, beyond remediable financial harm (such as loss of dispensing fees), suffered by Enhanced Care, which operated the pharmacy until the application judge's order. Enhanced Care's sublease from 233 entitled it to indemnity from 233, should Enhanced Care not be able to use the premises as a pharmacy.
While the appellants pointed to the absence of evidence that Medpharm suffered financial harm due to the operation of the Enhanced Care pharmacy, the Court was not satisfied that the balance of convenience favoured a stay.
In addition, the application judge's order was made on February 27, 2024. Nearly two months passed before the appellants brought a motion for a stay. The status quo ante was not a controlling consideration.
One Clarendon Inc. v. Finlay, 2024 ONCA 414
[Zarnett J.A. (Motions Judge)]
Counsel:
S. Sood, for the moving party
No one appearing for the responding parties
Keywords: Civil Procedure, Appeals, Orders, Security for Costs, Enforcement, Striking Appeal, Rules of Civil Procedure, r 61.06(2), One Clarendon Inc. v. Finlay, 2024 ONCA 323, 9383859 Canada Ltd. v. Navaratnam, 2021 ONCA 210, 9383859 Canada Ltd v. Saeed, 2023 ONCA 627
facts:
The responding parties on this motion for security for costs had an appeal pending in the Court from two orders of Black J. of the Superior Court. The orders struck their defence and counterclaim, ordered them to pay rental arrears and costs, terminated their tenancy, and granted their landlord ("Clarendon") leave to obtain a writ of possession for the rented premises.
Clarendon obtained an order from Lauwers J.A. on April 26, 2024 (the "April 26 Order"), requiring the respondents to post security for costs of the appeal and the proceedings below by May 3, 2024, and lifting the automatic stay that applied to the writ of possession: One Clarendon Inc. v. Finlay, 2024 ONCA 323. The Court noted that once the stay was lifted, Clarendon proceeded to regain possession of the premises by evicting the respondents. The respondents had not applied for a panel review of the April 26 Order.
Clarendon sought an order dismissing the respondents' appeal under r. 61.06(2) of the Rules of Civil Procedure, which provides that an appeal may be dismissed where an appellant has not complied with an order for security for costs.
issues:
Should the appeal be dismissed as a result of the respondents' failure to post security for costs?
holding:
Motion granted.
reasoning:
Yes.
Rule 61.06(2) permits a judge to dismiss an appeal if an appellant fails to comply with an order for security for costs.
Once a failure to comply has been established, the onus is on the defaulting appellant to provide compelling reasons why dismissal of the appeal is not in the interests of justice: 9383859 Canada Ltd. at para. 11. In making such a determination, deference is owed to the decision to award security, and the ground on which security was ordered is important. Impecuniosity and the reasons for it may be considered, as may the merits of the appeal: 9383859 Canada Ltd at para. 8.
The respondents complained that the order for security should not have been made, and that the request for it should have been adjourned. However, that submission flied directly in the face of the requirement that, on this motion, deference was to be shown to the decision to award security. As the court stated in Saeed, at para. 8, an "appellant who simply re-argues that security is unwarranted will likely be unsuccessful" in avoiding dismissal. The ground on which security was ordered, especially as it related to the merits of the appeal, reinforced the conclusion that a compelling reason to avoid dismissal was absent. The order for security for costs was premised on a finding that the appeal appeared frivolous and vexatious.
In addition to the deference owed to the finding that the appeal appeared to be frivolous and vexatious, the Court noted the following. The writ of possession had been enforced and the respondents had been evicted; the spectre of mootness therefore hovered over those parts of their appeal that related to termination of the tenancy and possession of the premises. In so far as the notice of appeal complained of the striking of their defence and counterclaim on March 12, 2024, that was based on the respondents' failure to pay the rent required by the March 2023 Order – an order that they had not successfully appealed. Once their pleadings were struck, as Black J. noted, Clarendon was entitled to the relief granted on March 27, 2024, and the letter that the respondents had sent to explain their non-attendance on that date did "not contest the substance of Clarendon's request." Finally, although the notice of appeal made allegations of bias against Black J., nothing in the record for this motion supported those allegations.
Finally, the Court noted that under r. 56.05, made applicable to appeals by r. 61.06(1.1), the respondents were prevented from proceeding with their appeal without leave until the security ordered has been posted.
Zaidi v. Syed Estate, 2024 ONCA 406
[van Rensburg, Sossin and Dawe JJ.A.]
Counsel:
K. Randhawa, for the appellant
R. S. Mann, for the respondents
Keywords: Wills and Estates, Contracts, Real Property, Unjust Enrichment, Defences, Undue Influence, Unconscionability, Misrepresentation, Remedies, Rescission, Civil Procedure, Settlements, Enforcement, Procedural Fairness, Applications, Trial of Issues, Singh v. Trump, 2016 ONCA 747, Tall Ships Development Inc. v. Brockville (City), 2022 ONCA 86, Leslie v. Mississauga (City) (2006), 81 O.R. (3d) 415, Cashbloom Canada, ULC v. Ridgeway Design Centre Inc., 2017 ONSC 2994, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9
facts:
The appellant, Mr. Z, commenced an application in the Superior Court against the estate of Mr. S (his uncle) and the estate trustee, Ms. N, who is the late Mr. S's widow (and Mr. Z's aunt). Mr. Z was seeking to enforce a settlement agreement dated April 7, 2021. He claimed that he was entitled to payment by the estate of $94,283 and accrued interest under the agreement. Ms. N opposed enforcement of the settlement. The underlying dispute was in relation to a condominium unit purchased by Mr. S in 2017 (the "Unit"). The Unit was leased to Mr. Z for himself and for a sister of Mr. S and her two children.
Mr. Z claimed that sometime between April and June of 2019, Mr. S agreed to sell the Unit to him for $420,000 after Mr. Z became a permanent resident. He deposed that after they reached this oral agreement, he stopped paying rent on the Unit, and all of the monthly payments he made thereafter (which increased from $1,600 per month to $2,450 and then to $2,495) were used to service the mortgage and were on account of the purchase price.
Ms. N retained counsel after Mr. Z demanded payment in early July 2021. In a letter dated July 7, 2021, Ms. N's lawyer told Mr. Z that his client disputed the alleged agreement on various grounds, "more particularly that the [settlement agreement] was executed involuntarily by [her]". He advised that the sum of $94,283 would be held back from the proceeds of sale of the Unit and paid into court unless there was a settlement. In response, Mr. Z retained his own counsel who insisted on a holdback of $109,283 from the sale of the Unit ($94,283 plus $15,000 security for costs), which amount was held in trust when the sale of the Unit was closed on July 30, 2021, and eventually paid into court. In November 2021, Mr. Z commenced the underlying application to enforce the settlement agreement.
issues:
- Did the application judge err in denying Mr. Z procedural fairness by deciding the application on grounds that had not been pleaded?
- Did the application judge err in determining credibility issues, and ought he to have directed a trial?
- Did the application judge fail to consider Mr. Z's alternative claim for unjust enrichment?
- Did the application judge fail to respect the principle of the finality of settlements?
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