Contracts/Torts: Breach of Contract/Duty of Care

Georgina Swanby, et al. v. Tru-Square Homes Ltd., et al., 2023 ABCA 224 (40926)
The Applicants (hereinafter “Swanbys”) and the Respondents (hereinafter “Mr. Metcalfe” and “Tru-Square”) were parties to a written agreement for the construction of a custom home. Tru-Square’s principal, Mr. Metcalfe, signed the contract exclusively in his capacity as principal of Tru-Square. Mr. Metcalfe owned 99% of shares in Tru-Square. In May 2013, an issue arose with respect to leaking windows and water leaking through the soffits of the custom home. Tru-Square took the position that fixing windows was not its responsibility, and shortly thereafter left the construction site and never returned. The Swanbys sued Tru-Square and Mr. and Mrs. Metcalfe and sought damages of $1,000,000 for “breach of contract, negligence, conspiracy, unjust enrichment, breach of trust, breach of fiduciary duty, and fraud”. The Swanbys alleged that Mr. Metcalfe was “personally liable for such fraudulent conduct”, and asked for aggravated damages, punitive damages, and injunctive relief. The trial judge found that Tru-Square breached the contract with the Swanbys and found Mr. Metcalfe jointly and severally liable in tort for breach of the duty of care owed to the Swanbys. The Alta. C.A. held that the trial judge erred in finding Mr. Metcalfe jointly and severally liable in tort for breach of the duty of care owed to the Swanbys. The Alta. C.A. allowed Mr. Metcalfe’s appeal. “The application for leave to appeal…is dismissed with costs.”
 

Criminal Law: Private Prosecutions

Matthew Paik, et al. v. Jim MacSween, et al., 2023 ONCA 642 (41031)
The Applicant, Mr. Paik, was arrested by York Regional Police. At the police station, he urinated in the toilet of his cell, captured on video surveillance. The charges against Mr. Paik were subsequently dropped by the Crown. Mr. Paik then laid informations by private prosecutions against the Respondents, six officers of York Regional Police. Mr. Paik alleged that the police officers had unlawfully kept copies of the surveillance video. The Crown indicated its intention to intervene in the proceedings before the Ontario Court of Justice with a view to withdrawing the informations against the police officers because there were no reasonable and probable grounds for prosecution. Mr. Paik opposed the application for intervention, arguing that the Crown was motivated by bad faith and that it would be an abuse of process to allow the Crown to intervene. The Justice of the Peace allowed the Crown to intervene and to withdraw the informations. Mr. Paik filed a certiorari application with the Superior Court. The Superior Court judge dismissed the application, satisfied that Mr. Paik had had an opportunity to submit evidence of bad faith and abuse of process, but that there was no such evidence. She was also satisfied that the Justice of the Peace had followed the process established in the case law to determine that it was appropriate for the Crown to withdraw the informations laid by Mr. Paik. The Ont. C.A. found that Mr. Paik’s appeal had no merit. “The application for leave to appeal…is dismissed with costs.”
 

Family Law: Child Protection 

A.T. v. Human Rights Tribunal of Ontario (HRTO), et al., 2024 ONCA (41107)
There is a publication ban in this case, certain information not available to the public, in the context of child protection. “It is not necessary to consider the motion for an extension of time to serve and file the application for leave to appeal. The motion to file a lengthy memorandum of argument is granted. All other miscellaneous motions are dismissed. The application for leave to appeal…is dismissed.”
 

Family Law: Pensions

Donald Davis v. Joanne Harrison, 2023 NSCA 74 (41073)
Applicant Donald Davis and Respondent Joanne Harrison were married in 2001 and separated in 2020. Following a three-day trial, the trial judge issued a divorce order and a Corollary Relief Order providing, among other things, that Ms. Harrison was entitled to half of Mr. Davis’ Canadian Armed Forces pension. The trial judge also awarded costs to Ms. Harrison. Mr. Davis appealed the pension division and the costs award and brought a motion to admit fresh evidence. The N.S.C.A. dismissed the motion, and held that Mr. Davis had established no basis for the court to intervene concerning the pension division or the costs decisions of the trial judge. The appeal was dismissed. “The application for leave to appeal…is dismissed”
 

Judges: Discipline

Justices of the Peace Review Council v. Justice of the Peace Julie Lauzon, 2023 ONCA 425 (40900)
The Respondent, Justice of the Peace Julie Lauzon (hereafter “JP Lauzon”), wrote an article critical of the operation of bail courts and of the conduct of some Crown prosecutors appearing in her court. The article was published online and in print by a national newspaper. After the article appeared, the Applicant Justices of the Peace Review Council received three complaints about JP Lauzon. Following an investigation, the Council’s complaints committee ordered a formal hearing. The hearing panel unanimously determined that JP Lauzon had engaged in judicial misconduct. A majority of the panel recommended that she be removed from office; the dissenting member would have imposed a reprimand and a 30-day suspension. The Divisional Court dismissed JP Lauzon’s judicial review. The Ont. C.A. allowed the appeal in part; the court substituted the dissenting panel member’s suggested disposition for that of the majority, and ordered that JP Lauzon be reprimanded and suspended for 30 days. “The application for leave to appeal…is dismissed with costs.”
 

Labour Law: Fair Representation

Eugene Laho v. Unifor Local 414, et al., 2023 ONCA (41066)
There is a publication ban in this case, certain information not available to the public, in the context of an allegation of breach of the duty of fair representation. “The motion for an extension of time to serve and file the application for leave to appeal…is dismissed. Had the motion for an extension of time to serve and file the application for leave to appeal been granted, the application for leave to appeal would have been dismissed.”
 

Litigation: Amendments

airG Inc. v. Vincent Yen and 0756383 BC Ltd., 2023 BCCA (41065)
The Respondents, Vincent Yen and 0756383 BC Ltd. (collectively, “Mr. Yen”) were minority shareholders of the Applicant corporation, airG Inc. (“airG”). Mr. Yen brought a proceeding against another shareholder and against airG by notice of civil claim. Mr. Yen seeks, among other things, the winding-up or liquidation of airG. AirG filed a response to Mr. Yen’s notice of civil claim, but also a counterclaim against Mr. Yen. In response, Mr. Yen applied for leave to file amendments to his notice of civil claim that would contain various allegations concerning airG’s conduct in this proceeding, as well as the use or appropriation of various resources belonging to airG by the defendant shareholders for their own purposes. The application judge dismissed Mr. Yen’s application to amend as failing to raise an actionable oppression claim as against airG and as unsupported by the necessary material facts. The B.C.C.A. allowed Mr. Yen’s appeal, concluding that the amendments Mr. Yen sought in order to make further claims against airG were not bound to fail. “The application for leave to appeal…is dismissed with costs.”
 

Litigation: Anti-SLAPP

Christopher Zeppa v. Karen Rea, 2023 ONCA 668 (41034)
Ms. Rea was a city councillor. Mr. Zeppa a developer who sought to develop a parcel of land into a subdivision of homes. Ms. Rea voted against the development. There was evidence before the motion judge that Ms. Rea’s continued opposition to the development caused Mr. Zeppa to become frustrated. This led to an incident at a bar where words were exchanged. Mr. Zeppa became aware that the matter was reported to the police by Ms. Rea. Mr. Zeppa commenced an action against Ms. Rea seeking $1.1M in damages for “false and slanderous statements”. Mr. Zeppa served a fresh amended statement of claim increasing his damages claim by $10M for: breach of fiduciary duty, interference with economic relations, misfeasance in public office, and champerty. Ms. Rea brought a motion, pursuant to s. 137.1 of the Courts of Justice Act, to dismiss Mr. Zeppa’s action. Her motion was dismissed by the motion judge. The Ont. C.A. allowed Ms. Rea’s appeal. Having concluded that the expression at issue was on a matter of public interest, the Ont. C.A. found that Ms. Rea satisfied her onus under s. 137.1(3). Since the motion judge did not consider the factors under s. 137.1(4), the matter was remitted back to a different judge to consider and rule on those factors. “The application for leave to appeal…is dismissed with costs.”
 

Litigation: Anti-SLAPP

Joseph Volpe and M.T.E.C Consultants Ltd. v. Kristyn Wong-Tam, Paul Ainslie, et al., 2023 ONCA 680 (41041)
The Applicant, Mr. Volpe, was the publisher of Corriere Canadese, a newspaper critical of some of the trustees of the Toronto Catholic District School Board (TCDSB) who promoted policies that Mr. Volpe believed undermine Roman Catholic teaching on sexuality and gender. In criticizing the policies of the TCDSB, Mr. Volpe engaged in personal attacks on the trustees who championed them. After Mr. Volpe used highly pejorative language to object to the TCDSB providing a link on its website to an LGBTQ2S+ resource website which itself linked to sexually explicit material, the Respondent councillors — supported by the Respondent trustees — took action to have the City of Toronto stop advertising in Corriere Canadese. The Applicants sued the Respondents for defamation and other causes of action. The Respondents successfully brought motions to dismiss the action as a SLAPP action under s. 137.1 of the Courts of Justice Act. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Litigation: Dismissal; Jurisdiction

Gaurav Tewari v. Ted McIntyre, et al., 2023 ONCA 628 (41027)
Mr. Tewari commenced an action in Ontario Superior Court of Justice against Mr. McIntyre, Mr. Dukes and Dessicare Inc., claiming damages for breach of contract, theft of intellectual property, trade secret violations, anti-trust violations, fraud, fraudulent inducement, breach of fiduciary duty and mental distress. The defendants brought a motion to have the action dismissed or stayed. The motions judge granted the motion and dismissed the action for lack of jurisdiction. The Ont. C.A. dismissed an appeal. “The motion to file a lengthy memorandum of argument is granted. The application for leave to appeal…is dismissed with costs.”
 

Real Property: Acquisitive Prescription

Mariette Morin Gonthier v. Stephen J. Shiller, 2023 QCCA 784 (40917)
The Applicant, Mariette Morin Gonthier, is the owner of a residence located on Chemin Tour du Lac in Sainte-Agathe-des-Monts, Québec. She has a servitude of right of way on a lot giving her direct access to Lac des Sables from the public road. The lot on which the site of the servitude is located is divided into four parts, identified as A to D. It appears that the owner of the lot in question was untraceable, and, therefore, in accordance with the provisions of the Civil Code, the lot was considered to be a thing without an owner belonging to the state. Since the state did not exercise any possession and did not claim ownership of the lot, the acquisitive prescription rules in the Civil Code of Québec applied. In this case, both parties claimed ownership of the entire lot, which they believed they had acquired by acquisitive prescription. The Superior Court dismissed Ms. Morin Gonthier’s application as well as her application for a declaration of abuse and for damages. However, it allowed Mr. Shiller’s application in part, recognizing his ownership of parts A and D of the lot subject to respect for the servitudes of right of way charging the lot. It dismissed his application for a declaration of abuse and for damages. The Qué. C.A. dismissed Ms. Morin Gonthier’s appeal. “The application for leave to appeal…is dismissed with costs. Côté J. took no part in the judgment.”
 

Real Property: Servitudes

Mariette Morin Gonthier v. Shilldev Inc., et al., 2023 QCCA 785 (40918)
The Applicant, Ms. Morin Gonthier, is the owner of a property registered in the Québec cadastre with a building constructed on it and that is located in Sainte-Agathe-des-Monts, Québec. The property devolved to her by testamentary succession in her capacity as residuary universal legatee of the late Honourable Justice Gonthier (formerly S.C.C.) on January 26, 2010. The lot had been acquired by the late Honourable Justice Gonthier through two transactions, one in 1976 and one in 1986. The two acts of sale refer to the purchaser’s right of way on the reserved land as running along the property sold. The lots relating to this reserved land, referred to as Chemin Doherty, now form renewed lot 5 582 072. The Applicant initiated a proceeding before the Superior Court for recognition of her rights on the Chemin Doherty lot. She alleged that she and her late husband exercised peaceful, continuous, public and unequivocal possession as owners. The land was considered a thing without an owner, which resulted in it being managed by the Agence du revenu du Québec in its capacity as administrator of unclaimed property. The Applicant also sought to have the servitudes of right of way that the Respondents, Shilldev inc. and Ms. Bernstein, have on Chemin Doherty declared extinct. The Superior Court dismissed Ms. Morin Gonthier’s originating application and the Respondents’ application for damages for abuse of procedure. The Qué. C.A. dismissed Ms. Morin Gonthier’s appeal. “The application for leave to appeal…is dismissed with costs. Côté J. took no part in the judgment.”
 

Torts: Sexual Battery; Defamation

Shayl Nole v. Natasha Seymour, 2023 BCCA 329 (40950)
The Respondent alleged the Applicant had sexual intercourse with her without her consent. The trial judge: held that the Applicant committed a sexual battery against the Respondent and that she did not consent to the sexual activity; the Applicant had not established a reasonable belief in consent and awarded the Respondent damages for sexual battery; allowed the Respondent’s counterclaim against the Applicant’s mother for defamation. The B.C.C.A. dismissed the appeal from the sexual battery claim, and allowed the appeal of the defamation claim. “The motion for an extension of time to serve the response is granted pursuant to Rule 6(1) of the Rules of the Supreme Court of Canada. The application for leave to appeal…is dismissed with costs.”
 

Torts: Unlawful Means by Civil Fraud

Ultracuts Franchises Incorporated, et al. v. Christopher R. Cawston, et al.,2023 MBCA 71 (40980)
Wal-Mart Canada Inc. purchased stores from Woolworth Canada Inc. and terminated licence agreements pursuant to which Magicuts Inc. or its franchisees operated hair salons in stores across Canada. Wal-Mart Canada Inc. subsequently agreed to let both Magicuts Inc. and Ultracuts Franchises Incorporated open hair salons in some of the stores. Disputes arose and Magicuts Inc. set out its position in a letter to Wal-Mart Canada Inc. Based on the letter, Ultracuts Franchises Incorporated commenced an action against Magicuts Inc. and two of its principals claiming damages for the tort of unlawful means committed by civil fraud. The trial judge awarded damages of $34,575,000. The Man. C.A. allowed an appeal, set aside the damages award, and dismissed the claim. “The application for leave to appeal…is dismissed with costs.”