ONCA 2023

This is an appeal from a summary judgment holding appellants liable on guarantees related to a syndicated mortgage.

The Court of Appeal upheld the motion judge's finding that personal and corporate guarantees were incorporated by reference into the investment agreements, despite investor unawareness and limiting clauses, based on objective contractual interpretation and trustee disclosure duties.

However, the Court varied the damages calculation, ruling that the interest rates specified in the Loan Participation Agreements (10% or 12%) should apply, not the 18% rate from the Loan Commitment.

The appeal was dismissed on liability but allowed on the interest rate calculation.

The appellant, Cipponeri Construction Services Inc. (CCSI), appealed a motion judge's order dismissing its 2020 action against Westin Homes Ltd. and Michael Orsi as an abuse of process.

The 2020 action was commenced to preserve a limitation period for a claim against Westin that had been ineffectively asserted in a prior 2018 counterclaim.

The Court of Appeal found the motion judge erred in dismissing the 2020 action against Westin as an abuse of process, as it was initiated to preserve a limitation period.

The court varied the order, staying the 2020 action against Westin, requiring CCSI to promptly move to amend the 2018 counterclaim to add itself as a plaintiff, and stipulating that no limitation period defense prior to March 16, 2020, would be asserted.

The dismissal against Orsi personally was upheld.

The Court of Appeal for Ontario granted the moving party's motion for security for costs of an appeal.

The appellant, Rosetta Commisso, was found to be impecunious and there was good reason to believe her appeal, challenging factual findings of a summary judgment dismissing her trust claims against her former mother-in-law, was frivolous and vexatious.

The court applied the two-part test under Rule 61.06(1)(a) of the Rules of Civil Procedure and Rule 38(26) of the Family Law Rules, emphasizing the holistic consideration of justice.

The appeal was deemed to lack merit as it primarily challenged factual findings rather than errors of law, and partial summary judgment was found appropriate.

The appellant, a creditor of the Kyrgyz Republic, appealed the dismissal of its garnishment motion against Centerra Gold Inc., seeking to garnish a $50 million intercompany payment made by Centerra to its subsidiary, Kumtor Gold Company CJSC (KGC), as part of a court-approved plan of arrangement.

The appellant argued that the Kyrgyz Republic was the alter ego of KGC due to de facto appropriation.

The Court of Appeal dismissed the appeal, finding no reversible error in the application judge's determination that Centerra had not lost all control over KGC and was not deprived of all economic benefits, and that KGC remained a separate corporate entity.

The appellant, R.Y., appealed his convictions and sentence for sexually assaulting his 10-year-old niece.

The appeal challenged the trial judge's jury instructions regarding the complainant's evidence, specifically whether her appreciation for detective shows and "Story Time" tainted her testimony, and whether the consistency in defence witnesses' evidence was due to inadvertent tainting or collusion.

The Court of Appeal found no error in the jury charge, concluding it properly equipped the jury to assess credibility and reliability.

The appellant also sought leave to appeal a six-year sentence, arguing it did not respect the "step" principle.

The court found no error in principle, noting the seriousness of the assaults, the breach of trust, and the appellant's prior conviction for child pornography.

Both the conviction appeal and the sentence appeal were dismissed.

The appellant, R.R., appealed convictions for ten offences involving child pornography and counselling to commit sexual interference, arguing entrapment.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the police had reasonable suspicion to initiate an investigation based on the appellant's Craigslist ad and that the investigation did not constitute entrapment.

The court found the appellant's statements in the ad were sufficient to ground reasonable suspicion.

The appellant's appeal from sentence was abandoned.

The appellant, Kevin Nguyen, appealed his convictions for various firearm-related offences.

The appeal challenged the trial judge's Charter ruling regarding an unlawful arrest, an illegal apartment freeze, and the validity of a subsequent search warrant.

The application judge had excluded drugs found on the appellant but admitted a handgun and cash found in his apartment.

The appellant argued errors in the s. 24(2) Charter analysis (failure to consider overall police conduct and D.C. Worth's lack of good faith), and errors in the Garofoli ruling (permitting amplification of the Information to Obtain a search warrant and failing to exercise residual discretion to set aside the warrant).

The Court of Appeal dismissed the appeal, upholding the application judge's decisions on all grounds.

The appellant, A.S., appealed a dangerous offender designation and indeterminate sentence imposed for multiple sexual and child pornography offences involving her minor children.

The appeal raised two arguments: that the sentencing judge failed to consider the appellant’s future treatability at the designation stage (a "Boutilier error") and erred by not considering a less restrictive sentencing option.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had properly applied the principles from R. v. Boutilier, deeply engaged with the psychiatric evidence regarding treatability and intractability, and correctly concluded that a lesser sentence would not adequately protect the public given the appellant's lifelong risk and the unlikelihood of rehabilitation within a determinate period.

The appellants appealed the dismissal of their motion to amend their statement of claim to advance personal claims for damages and increase the prayer for relief, stemming from an explosion in an apartment building they previously owned through a numbered company.

The Court of Appeal dismissed the appeal, upholding the motion judge's decision.

The court found the motion to amend was brought too late, would cause presumed non-compensable prejudice to the defendants by materially altering the factual framework and requiring new evidence, and that the proposed personal claims by shareholders lacked a proper legal foundation as they did not demonstrate a personal cause of action separate from the company's claims.

The appellant sought a review of a chambers judge's order that partially lifted an automatic stay pending appeal, arguing the judge erred in finding financial hardship without sufficient evidence.

The Court of Appeal dismissed the appellant's motion for review, finding no error in principle or unreasonable result in the chambers judge's exercise of discretion under Rule 63.01(5).

The court affirmed that the chambers judge correctly applied the factors for lifting a stay, including financial hardship, ability to repay, and appeal merits, and that the appellant's own admission regarding the minimum amount owed supported the decision.

The moving parties, Henia Gefen and Harvey Gefen, sought a review of a single judge's dismissal of their motions to stay a motion judge's order.

The underlying order had declared Henia Gefen incapable of managing her property and instructing counsel, appointing a litigation guardian.

The Court of Appeal dismissed the review motions, finding no legal error or misapprehension of evidence in the single judge's decision.

The court also addressed costs, fixing Harry Gefen's costs at $5,000 and ordering Ronald B. Moldaver, K.C., Henia Gefen's counsel, to bear personal responsibility for costs related to the review motion he brought on her behalf without authority, disallowing him from charging Henia Gefen for these costs.

This appeal addressed whether the trial judge erred in declining to pierce the corporate veil to hold a personal defendant liable for a corporation's breaches of contract.

The Court of Appeal affirmed that piercing the corporate veil is an exception, particularly in commercial settings where parties understood they were contracting with a corporation.

The court found that the corporate defendant's "unreasonable" and "capricious" breaches of contract did not amount to "improper conduct" sufficient to justify piercing the veil, as doing so for every breach by a one-person company would undermine corporate separateness.

The cross-appeal was dismissed.

The Court of Appeal for Ontario heard a motion to quash an appeal.

The underlying order, which was the subject of the appeal, concerned the validity of service on the appellant.

The Court determined that orders relating to the validity of service are interlocutory, and therefore, the Court of Appeal lacked jurisdiction to hear the appeal.

The motion to quash was allowed, and the appeal was quashed.

The Court noted that the appellant should not be prejudiced by the delay in bringing the matter before the Divisional Court, and counsel for the respondent agreed not to object to a timely extension of time for a motion for leave to appeal in the Divisional Court.

This is a costs endorsement following the dismissal of an appeal and a motion for fresh evidence.

The Court of Appeal for Ontario awarded costs to the respondents, Jonathan Speigel, Lawyers’ Professional Indemnity Company (LawPRO), and Garen Kassabian, payable by the self-represented appellants, Rhys Fockler and Lyn Cartwright.

The costs were set at $7,500 for Kassabian and $7,500 for Speigel and LawPRO, inclusive of disbursements and taxes.

The appellants (Donkers parties) appealed the damages and costs awards made in a counterclaim by the respondents (Priest parties).

The original litigation stemmed from the Donkers parties' seizure of assets from the Priest parties' waste removal business without notice, leading to the Priest parties' business failure.

The trial judge had quantified damages for the Priest parties' counterclaim for breach of contract.

The Donkers parties argued the trial judge erred by not reducing the award for an excavator lease and by not applying consistent asset valuations.

They also raised new arguments regarding mitigation and expert fees.

The Court of Appeal found no merit in any of the appellants' submissions, dismissing the appeal and awarding costs to the respondents.

Money Gate Corporation (MGC) brought a motion for an extension of time to file its notice of appeal and a declaration that it had an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act (BIA), or alternatively for leave to appeal under s. 193(e).

The underlying matter involved a receivership where a motion judge had dismissed MGC's claim for payment from the proceeds of a property sale, finding no valid assignment of a second mortgage and that MGC was not the registered owner.

The Court of Appeal granted the extension of time, finding MGC's grounds of appeal not frivolous and no real prejudice to the responding parties.

Crucially, the court declared that MGC had an appeal as of right under s. 193(c) of the BIA, concluding that the motion judge's order finally determined MGC's economic interests in the property proceeds, distinguishing it from a mere priorities dispute.

This motion concerned a request for a stay pending appeal of a lower court's dismissal of an application for leave to intervene.

The underlying matter involved the College of Physicians and Surgeons of Ontario seeking an order to compel Dr. Kilian to provide patient files related to COVID-19 vaccine exemptions.

The moving parties, anonymous patients of Dr. Kilian, argued their s. 8 Charter privacy rights would be violated without their intervention.

The Court of Appeal dismissed the motion for a stay, finding no serious issue to be tried.

The court held that the expectation of privacy in medical records is lower in a regulatory context, as the primary purpose of such investigations is public protection, and existing confidentiality protections within the regulatory scheme are sufficient.

The appellant, a third-party creditor (2401242 Ontario Inc.), appealed an order releasing the wife's share of matrimonial home sale proceeds.

The appellant had obtained a default judgment and filed a writ against the husband, arguing priority over the wife's interest in the jointly held matrimonial home.

The Court of Appeal dismissed the appeal, holding that a creditor cannot seize the interest of a non-debtor joint tenant.

The court clarified that under Ontario's Execution Act, a writ only binds the debtor's exigible interest in jointly held land, not the entire property, and therefore the wife was entitled to her half-share of the proceeds.

The Court of Appeal for Ontario heard a motion to quash an appeal regarding the appointment of a litigation administrator.

The moving parties argued that the appointment was an interlocutory order and therefore not appealable to the Court of Appeal.

The responding parties contended that the order became final because it was joined with a final order validating a provisional opt-out form.

The Court found that the appointment of a litigation administrator is an interlocutory order, distinct from decisions made under that authority.

Consequently, the appeal from the order appointing the litigation administrator was quashed, while the appeal concerning the opt-out form remained.

This is an appeal from a summary judgment motion.

The appellant claimed he was not obliged to repay interest on debts due to misrepresentation and conflict of interest by his lawyer, who was also involved with the respondent lender.

The Court of Appeal upheld the motion judge's decision, finding no evidentiary support or legal defence for the appellant's claims.

The appeal was dismissed, and leave to appeal the costs order was refused.