Gordon Peter Acton

The Court of Appeal for Ontario considered a motion regarding an appeal that arose under the Construction Lien Act.

The moving parties (respondents) argued that the Court of Appeal lacked jurisdiction over the appeal.

The court agreed, finding that jurisdiction for such matters lay with the Divisional Court, and that the question of whether the underlying order was final or interlocutory was for the Divisional Court to decide.

Consequently, the Court of Appeal quashed the appeal and declined to exercise its discretion to transfer the appeal to the Divisional Court.

Costs were awarded to the successful moving parties.

The applicant corporation sought the return of funds seized from its bank account by a secured creditor, arguing that the seizure was invalid under a General Security Agreement and the Personal Property Security Act.

The applicant alleged that the wrong security agreement had initially been served, that the GSA was ambiguous and unenforceable, that it was not in default, that notice requirements under the PPSA were breached, and that the warrant authorized seizure of the account rather than the funds.

The court rejected each argument, holding that the GSA was valid and enforceable, the applicant was in default through its guarantee of the borrower’s indebtedness, and the secured creditor’s enforcement complied with the PPSA.

The court also held that funds in the account constituted proceeds that could be directly seized under the statute.

The application for return of the seized monies was dismissed.

The applicant roofing company brought a pre-trial motion to exclude the expert evidence of an architect and engineer retained by the respondent.

The consultant had been involved in advising the respondent on roof repairs prior to and during the applicant's work.

The court held that Rule 53.03 of the Rules of Civil Procedure does not apply to experts who are involved in the history of the subject matter, as opposed to those retained solely for litigation.

The motion was dismissed, and the consultant was permitted to provide both factual and opinion evidence at trial.

The respondent, owner of lands east of Lake Superior Provincial Park, sought to use a road within the Park to access its lands for timber harvesting.

The Acting Park Superintendent denied the request based on the 1995 Lake Superior Provincial Park Management Plan.

The application judge granted judicial review, finding the Superintendent's interpretation incorrect and procedurally unfair.

The Court of Appeal allowed the Minister's appeal, holding that the application judge erred by applying a correctness standard.

Applying a pragmatic and functional approach, the Court determined the standard of review was reasonableness or patent unreasonableness, and found the Superintendent's interpretation of the policy document was not unreasonable.