Court of Appeal Summaries (October 31, 2022 - November 4, 2022)

  • November 15, 2022
  • John Polyzogopoulos and Ines Ferreira

Table of Contents

Civil Decisions

Stelmach Project Management Ltd. v. Kingston (City), 2022 ONCA 741

Keywords: Municipal Law, Statutory Interpretation, Land Use Planning, By-laws, Development Charges, Municipal Act, 2001, S.O. 2001, c. 25, ss. 10(2), 15(1), 391, 394(1)(e), Development Charges Act, 1997, S.O. 1997, c. 27, ss. 2, 5, 10(1), 10(2)(7), 12(1), Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 71(c), Fees and Charges, O. Reg. 584/06, s. 2(1), Mississauga (City) v. Erin Mills Corp. (2004), 71 O.R. (3d) 397 (C.A.), Ontario Cancer Treatment and Research Foundation v. Ottawa (City) (1998), 38 O.R. (3d) 224 (C.A.), Croplife Canada v. Toronto (City) (2005), 75 O.R. (3d) 357 (C.A.), R. v. Greenbaum, [1993] 1 S.C.R. 674, Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641 (C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Canada v. Cheema, 2018 FCA 45, Whiteley v. Guelph (City) (1999), 14 M.P.L.R. (3d) 146 (Ont. OMB), Nylene Canada Inc. v. Corporation of the Town of Arnprior, 2017 ONSC 795, John Mascarin and Paul De Francesca, Annotated Land Development Agreements, loose-leaf (2022 Release 3), Robert Macaulay and Robert Doumani, Ontario Land Development: Legislation and Practice, loose-leaf (1999 Release 3), John Mascarin and Christopher J. Williams, Ontario Municipal Act & Commentary, 2023 ed. (Markham: LexisNexis Canada Inc., 2022), Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada Inc., 2022)

Lake v. LaPresse, 2022 ONCA 742

Keywords: Employment Law, Wrongful Dismissal, Termination without Cause, Damages, Mitigation, Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Red Deer College v. Michaels, [1976] 2 S.C.R. 324, Gryba v. Moneta Porcupine Mines Ltd. (2000), 5 C.C.E.L. (3d) 43 (Ont. C.A.), Link v. Venture Steel Inc., 2010 ONCA 144, Humphrey v. Mene Inc., 2022 ONCA 531, McNevan v. AmeriCredit Corp., 2008 ONCA 846, Neilipovitz v. ICI Paints (Canada) Inc. (2002), 27 C.C.E.L. (3d) 256 (Ont. S.C.), Carter v. 1657593 Ontario Inc., 2015 ONCA 823, Forshaw v. Aluminex Extrusions Ltd. (1989), 39 B.C.L.R. (2d) 140 (C.A.), Rowe v. General Electric Canada Inc. (1994), 8 C.C.E.L. (2d) 95 (Ont. Gen. Div.), Parks v. Vancouver International Airport Authority, 2005 BCSC 1883

Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

Keywords: Civil Procedure, Partial Settlement Agreements, Disclosure Obligations, Abuse of Process, Remedies, Stay of Proceedings, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Tribecca Finance Corp. v. Harrison, 2019 ONSC 1926, Magnotta Winery Corporation v. Ontario (Alcohol and Gaming Commission), 2021 ONSC 178, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Waxman v. Waxman, 2021 ONSC 2180, Mann Engineering Ltd. v. Desai, 2021 ONSC 2245, Caroti v. Vuletic, 2021 ONSC 2778, Skymark Finance Corporation v. Her Majesty the Queen in Right of Ontario et al. (27 July 2021), Oshawa, 17/131909 (Ont. S.C.), Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Hamilton-Wentworth District School Board v. Zizek, 2022 ONCA 638, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Laudon v. Roberts, 2009 ONCA 383, Aviaco International Leasing Inc. v. Boeing Canada Inc. (2000), 9 B.L.R. (3d) 99 (Ont. S.C.)

10443204 Canada Inc. v. 2701835 Ontario Inc., 2022 ONCA 745

Keywords: Contracts, Interpretation, Entire Agreement Clauses, Defences, Rescission, Fraudulent Misrepresentation, Civil Procedure, Summary Judgment, Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 1018429 Ontario Inc. v. Fea Investments Ltd. (1999), 179 D.L.R. (4th) 268 (Ont. C.A.), Hasham v. Kingston (1991), 4 O.R. (3d) 514 (Div. Ct.), Soboczynski v. Beauchamp, 2015 ONCA 282, Free Ukrainian Society (Toronto) Credit Union Ltd. v. Hnatkiw et al., [1964] 2 O.R. 169 (C.A.), Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19

Don Mills Residents Inc. v. Toronto (City), 2022 ONCA 752

Keywords: Municipal Law, Site Plan Control, Contracts, Interpretation, Intention to Create Binding Legal Relations, Essential Terms, Agreements to Agree, Minutes of Settlement, Enforceability, Privity, Remedies, Specific Performance, Damages, Planning Act, R.S.O. 1990, c. P.13, s. 7 and 37, Hi-Rise Structures Inc. v. Scarborough (City) (1992), 10 O.R. (3d) 299 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

 

Short Civil Decisions

Art for Everyday Inc. v. Canarctic J.F.K. Inc., 2022 ONCA 747

Keywords: Contracts, Real Property, Commercial Leases, Default, Termination, Notice

Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2022 ONCA 755

Keywords: Aboriginal Law, Real Property, Aboriginal Title to Submerged Land, Public Right of Navigation, Civil Procedure, Intervenors, Fresh Evidence, Rules of Civil Procedure, r. 13.03(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Keewatin v. Ontario (Natural Resources), 2012 ONCA 472, McIntyre Estate v. Ontario (Attorney General) (2001), 26 C.P.C. (5th) 312 (Ont. C.A.)

Ryan v. Herbert, 2022 ONCA 750

Keywords: Family Law, Civil Procedure, Approval of Settlements, Rules of Civil Procedure, rr. 7.08, 21.01(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 87(2), Azzeh v. Legendre, 2017 ONCA 385


CIVIL DECISIONS

Stelmach Project Management Ltd. v. Kingston (City), 2022 ONCA 741

[Feldman, Tulloch and Miller JJ.A.]

COUNSEL:

M.S. Polowin and J.A. Polowin, for the appellant
T. Fleming, for the respondent

Keywords: Municipal Law, Statutory Interpretation, Land Use Planning, By-laws, Development Charges, Municipal Act, 2001, S.O. 2001, c. 25, ss. 10(2), 15(1), 391, 394(1)(e), Development Charges Act, 1997, S.O. 1997, c. 27, ss. 2, 5, 10(1), 10(2)(7), 12(1), Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 71(c), Fees and Charges, O. Reg. 584/06, s. 2(1), Mississauga (City) v. Erin Mills Corp. (2004), 71 O.R. (3d) 397 (C.A.), Ontario Cancer Treatment and Research Foundation v. Ottawa (City) (1998), 38 O.R. (3d) 224 (C.A.), Croplife Canada v. Toronto (City) (2005), 75 O.R. (3d) 357 (C.A.), R. v. Greenbaum, [1993] 1 S.C.R. 674, Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641 (C.A.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Canada v. Cheema, 2018 FCA 45, Whiteley v. Guelph (City) (1999), 14 M.P.L.R. (3d) 146 (Ont. OMB), Nylene Canada Inc. v. Corporation of the Town of Arnprior, 2017 ONSC 795, John Mascarin and Paul De Francesca, Annotated Land Development Agreements, loose-leaf (2022 Release 3), Robert Macaulay and Robert Doumani, Ontario Land Development: Legislation and Practice, loose-leaf (1999 Release 3), John Mascarin and Christopher J. Williams, Ontario Municipal Act & Commentary, 2023 ed. (Markham: LexisNexis Canada Inc., 2022), Ruth Sullivan, The Construction of Statutes, 7th ed. (Markham: LexisNexis Canada Inc., 2022)

FACTS:

The appellant land developer built two multi-unit residential properties in the City of Kingston (the “City”). The appellant either paid or would be required to pay the City $410,000 in impost fees to cover capital costs associated with the installation of water and sewer infrastructure needed to service the two properties. The City imposed the fees under By-law 2014-136 (the “By-law”), which was passed pursuant to s. 391 of the Municipal Act, 2001 (the “MA”).

Historically, it was common practice for municipalities to fund wastewater and sewer infrastructure through charges under the Development Charges Act, 1997 (the “DCA”). Prior to statutory reform in the 1980s, municipalities raised revenue for development through lot levies, which were contracts with landowners and were a condition to obtaining development approval. The DCA replaced the lot levy system. The DCA set out procedures that municipalities must follow in developing a by-law that imposes development charges. Specifically, the municipality is required to assess and calculate the increase in need for services attributable to the anticipated development, complete a public development charge background study, hold a public meeting, and provide a right of appeal to what was then the Ontario Municipal Board (the “OMB”).

The DCA did not affect the other tools municipalities used for raising revenue, such as the MA. Part II of the MA granted the City the broad power to pass by-laws for 11 enumerated purposes, which included by-laws in respect of services a municipality is authorized to provide. Part III of the MA granted the City with the specific power to make by-laws that addressed matters such as highways, transportation, waste management, public utilities, and health and safety. Subsection 394(1)(e) of the MA restricted the power of municipalities to impose fees or charges with respect to the generation, exploitation, extraction, harvesting, processing, renewal or transportation of natural resources.

At the application hearing, the appellant argued that the City was obligated to pass the By-law under the DCA, rather than the MA, because specific by-law making power ought to be preferred over general power. In the alternative, it was argued fresh on appeal that the By-law was illegal for failure to import all requisite procedural protections. Lastly, the appellant argued that the charges under the By-law were prohibited by ss. 394(1)(e) of the MA.

The application judge held that the City was permitted to pass the By-law pursuant to the general powers conferred under the MA. In addition, she held that the charges imposed by the By-law were not restricted by virtue of ss. 394(1)(e) of the MA.

ISSUE:
  1. Did the application judge err in determining that the City was permitted to rely on the general by-law making powers of the MA, rather than the specific by-law making powers of the DCA?
  2. Did the City fail to import the procedural protections required to render the By-law legal?
  3. Did the application judge err in determining that ss. 394(1)(e) of the MA did not act as a restriction to the charges levied through the By-law?
HOLDING:

Appeal dismissed.

REASONING:

1. No.

The Court held that the application judge made no error in her interpretation and application of the MA. The application judge’s conclusion that the City has multiple sources of power to impose fees to recover capital costs, and that it was not compelled to rely on the DCA, was correct.  The Court agreed with the application judge that the City relied on the general power in s. 10 of the MA, but it also satisfied the specific requirements set out in ss. 391(2) and 394. The Court noted that this case was fundamentally different from R v. Greenbaum, which was relied on by the appellant, because in that case the municipality relied on a general power but failed to satisfy the requirements of a specific provision.

In addition, the Court noted that the legislative history of the MA and the DCA made it clear that the intention of the legislators was to create a dual regime, whereby the City could pass By-laws under its choice of statute. For example, when the powers of municipalities were broadened under the MA, the supremacy clause in the DCA was removed. Furthermore, s. 2(1) of the Regulations: Fees and Charges under the MA expressly prohibited municipalities from “double dipping” by imposing fees or charges for a development that have already been imposed under the DCA. Lastly, the Court noted that the nature of the powers granted under the two statutes are different. The MA does not empower municipalities to impose land taxes, whereas development charges under the DCA have been judicially recognized as a form of land tax: Greater Toronto Airports Authority v. Mississauga (City).

2. No

The Court held that the By-law was legally passed. Subsection 15(1) of the MA states that if the power exists to pass a by-law under section 9, 10, or 11 and also under a specific provision of this or any other Act, the power conferred is subject to the procedural requirements, including appeals, that apply to the power contained in the specific provision. The appellant argued that the phrase “any other Act” referred to the DCA because it provided the same power to pass the By-law but under a more specific provision. Therefore, the appellant argued that there must be a right of appeal akin to that in the DCA in order for the By-law to be legal.

The Court noted that, while it is true that the City provided for no right of appeal, the appellant failed to properly interpret the statute. It was clear that the intention of the legislature was that s. 15 of the MA was only limited by procedural requirements contained with the more specific provision of the MA. The Court noted that this interpretation was correct for two reasons.

First, “any other Act” was understood in the context of the legislative history to refer to statutes that removed specific powers from the MA to a new statute in the 2001 reform (such as the Fluoridation Act). The Court stated that, in the 2001 reform, the words “any other Act” were added to s. 15. This interpretation did not apply to the DCA because it pre-dated the MA and did not have its genesis in one of its predecessors.

Second, the presumption of legislative coherence supported the view that the specific provisions of the DCA were not intended to be referenced in s. 15 of the MA because it did not confer the same power to pass a by-law. Subsection 391(2) permitted a charge on a person, while ss. 2(1) of the DCA authorized charges against land. If the two regimes confer different by-law making power, then the specific provisions applicable to each regime should not be interpreted as interchangeable for s. 15 purposes. In addition, at the time that the By-law was passed, s. 399 of the MA provided a review mechanism for charges levied under s. 391. Moreover, ss. 71(c) of the Ontario Municipal Board Act prevented such reviews. Therefore, it would be inconsistent to hold that charges levied under the MA must contain the same appeal mechanism as provided through the DCA.

3. No.

The Court held that the application judge did not err in her interpretation of ss. 394(1)(e) of the MA. Subsection 394(1)(e) provided that: “No fee or charge by-law shall impose a fee or charge that is based on, in respect of or is computed by reference to … the generation, exploitation, extraction, harvesting, processing, renewal or transportation of natural resources.”

The Court noted that the overall purpose of ss. 394(1) was to prevent municipalities from imposing fees or charges that are unrelated to municipal governance. The appellant argued that the purpose of ss. 394(1)(e) ought to have been interpreted differently because it was structured differently from the rest of the section: 1) it did not expressly exclude services provided by municipalities; and 2) it mentioned the generation, exploitation, etc. of natural resources at large, rather than specifying generation, exploitation, etc. “by a person”. Therefore, the appellant contended that the restriction contained in ss. 394(1)(e) ought to apply to the transportation of natural resources by the municipality as well as third parties.

The Court disagreed with the appellant’s interpretation. It held that ss. 394(1)(e) did not prevent the City from imposing a charge on land developers for the cost of providing infrastructure that transports water and wastewater for the benefit of its ratepayers. Otherwise, the City would be enjoined from imposing water and wastewater user fees on ratepayers, which would be an absurd result.


Lake v. LaPresse, 2022 ONCA 742

[van Rensburg, Pardu and Copeland JJ.A.]

COUNSEL:

D. Persaud and M. Rowe, for the appellant
S. Lorquet and V. Champoux, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Termination without Cause, Damages, Mitigation, Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), Paquette v. TeraGo Networks Inc., 2016 ONCA 618, Red Deer College v. Michaels, [1976] 2 S.C.R. 324, Gryba v. Moneta Porcupine Mines Ltd. (2000), 5 C.C.E.L. (3d) 43 (Ont. C.A.), Link v. Venture Steel Inc., 2010 ONCA 144, Humphrey v. Mene Inc., 2022 ONCA 531, McNevan v. AmeriCredit Corp., 2008 ONCA 846, Neilipovitz v. ICI Paints (Canada) Inc. (2002), 27 C.C.E.L. (3d) 256 (Ont. S.C.), Carter v. 1657593 Ontario Inc., 2015 ONCA 823, Forshaw v. Aluminex Extrusions Ltd. (1989), 39 B.C.L.R. (2d) 140 (C.A.), Rowe v. General Electric Canada Inc. (1994), 8 C.C.E.L. (2d) 95 (Ont. Gen. Div.), Parks v. Vancouver International Airport Authority, 2005 BCSC 1883

FACTS:

The respondent is a daily online French language newspaper based in Montréal, Québec. The appellant was hired in August 2013 and worked for the respondent for five and a half years as General Manager. The appellant was the most senior employee in the Toronto division, and managed the sales team to generate advertising revenue in Toronto and English Canada. At one time, the appellant had thirteen direct reports, and at the date of dismissal had eight. The appellant’s compensation consisted of an annual base salary of $185,000, with a car allowance, annual bonus, pension, and other benefits. The appellant was 52 years old at the date of her dismissal.

The appellant’s employment was terminated after the respondent decided to close its Toronto office. The appellant was notified on March 25, 2019, that her employment would end effective May 30. The appellant stopped working on April 30, 2019. After the termination of her employment, the appellant conducted a job search, but remained unemployed at the date of the summary judgment motion, two years after her dismissal.

There was no dispute that the appellant’s employment was terminated without cause and that she was entitled to reasonable notice at common law. The main issues on the summary judgment motion was the period of reasonable notice, whether the appellant was entitled to compensation for loss of bonus over the reasonable notice period, and whether the appellant’s notice should have been reduced for failure to mitigate.

In determining the reasonable notice period, the motion judge applied the factors outlined in Bardal v. Globe & Mail Ltd. The motion judge fixed the reasonable notice period at eight months after considering the appellant’s level of seniority, the duration of her employment, her age at the date of dismissal, and her work experience in management in sales, especially in the media industry. In applying the test from Paquette v. TeraGo Networks Inc, the motion judge interpreted the respondent’s bonus plan and concluded that the appellant would have been entitled to an annual bonus of $39,065.

On the question of mitigation, the motion judge recognized that the onus was on the respondent to establish that the appellant failed to mitigate. There were two parts to the analysis: first, whether the appellant took reasonable steps, and second, if such steps had been taken that she would have likely obtained comparable employment. The motion judge concluded that the appellant did not reasonably mitigate her damages because: (a) she waited too long before beginning her job search; (b) she “aimed too high” in applying for vice-president roles and she should have applied for less senior roles if she continued to remain unemployed; and (c) the appellant waited too long before applying for any jobs, and she applied to very few jobs. The motion judge found that if the appellant had expanded the parameters of her job search, searched earlier, and applied for more positions, the appellant’s chances of obtaining a position would have improved. The motion judge found that the appellant chose unreasonably to limit her job search, which had a corresponding impact on her ability to find work.

Thus, the motion judge reduced the notice period of eight months by two months to account for the appellant’s failure to take reasonable steps to mitigate her damages.

The motion judge granted judgment in favour of the appellant in the total sum of $97,491.87. This amount accounted for damages for lost bonus for the period that the appellant was still employed by the respondent, and damages for wrongful dismissal, based on six months of her compensation package, less $40,026.22, the amount already received from the respondent. The respondent was awarded partial indemnity costs on the basis that it had made an offer to settle the litigation early in the proceedings that exceeded the amount of the judgment.

ISSUES:
  1. Did the motion judge err in concluding that the appellant failed to take reasonable steps to mitigate her damages?
  2. Did the motion judge err in her assessment of whether the appellant would have found comparable employment if she had taken reasonable steps to mitigate?
HOLDING:

Appeal allowed.

REASONING:
  1. Yes.

The appellant argued that there were three errors in the first stage of the motion judge’s mitigation analysis: (1) the motion judge erred in concluding that the appellant waited too long before beginning her job search; (2) the motion judge erred in principle by faulting her for not applying for positions that paid less than the position from which she was dismissed; and, (3) the motion made a palpable and overriding error in concluding that the appellant “aimed too high” and focused her job search on roles that represented a promotion over her prior role.

The Court disagreed with the appellant’s first argument but agreed with the appellant’s second and third arguments.

The Court found that the motion judge erred in principle when she accepted that, in mitigation, after a reasonable period of attempting to find similar employment, a dismissed employee must begin searching for a lesser paying job, and, further, when she concluded that the appellant should have applied for a sales representative role as she continued to remain unemployed. The Court clarified that the obligation of a terminated employee in mitigation is to seek “comparable employment”, which typically is employment that is comparable in status, hours and renumeration to the position held at the time of dismissal. The Court held that there was no obligation for the appellant to seek less remunerative work, such as a sales representative role.

The Court also found that the motion judge made a palpable and overriding error when she concluded that the appellant aimed too high when she applied for vice-president positions and had focused her job search on roles that represented a promotion over her prior role. The Court found that the appellant’s evidence of her steps to mitigate were substantial. The appellant detailed her efforts at searching for jobs, where she utilized: (1) LinkedIn and other online job boards almost daily; (2) keywords relevant to the range of job titles that were comparable and were not limited to vice-president positions; (3) networking, including attending meetings and conferences; (4) career transition services provided by the respondent; and, (5) additional coaching (privately paid).

The Court noted that the appellant’s affidavit provided that she had applied for 20 suitable positions and that this evidence made clear that she applied to positions that matched her work experience and qualifications, rather than focussing on job titles.

The Court’s view was that the motion judge placed too much emphasis on the titles of positions the appellant applied for, without considering the appellant’s evidence that the positions were similar to her prior work experience. Without evidence contradicting the appellant’s assertion that the vice-president roles had similar job responsibilities to her previous employment, the motion judge speculated, based on the title of the positions alone, that they were not comparable. The Court determined that this error influenced the motion judge’s determination that the appellant failed to take reasonable steps to mitigate her damages.

The Court clarified that the onus was on the respondent to prove the appellant’s failure to mitigate. Typically, when asserting a terminated employee failed to mitigate, the employer will lead evidence on this point. In this case, the Court found that the respondent offered no evidence to counter the appellant’s evidence that the vice-president positions had similar job responsibilities to her previous employment, and that opportunities in the industry at the time were limited.

  1. Yes.

The appellant asserted that, at the second stage of the test for mitigation, the motion judge made an inference that was not supported by the evidence. The motion judge engaged in speculation when, after concluding that the appellant had not taken reasonable steps to mitigate her damages, she stated that had the appellant expanded the parameters of her job search, searched earlier, and applied for more positions, her chances of obtaining a position would have improved significantly.

The Court clarified that the second part of the test on mitigation requires the court to be satisfied that, if reasonable steps had been taken, the terminated employee would likely have found a comparable position within the reasonable notice period. The Court referred to Rowe v. General Electric Canada Inc, where Ferguson J. observed that “the breach of the plaintiff’s duty to mitigate will only be relevant if the breach is proved to be causative [of the plaintiff’s loss].” The Court found that, in this case, there was no evidence to support the conclusion that the terminated employee would likely have found comparable employment if reasonable and appropriate steps in mitigation had been taken.

The Court found that the motion judge’s inference did not go so far as to meet the second stage of the mitigation test. Rather, the motion judge inferred that the appellant’s chances of obtaining a position would have improved significantly, and she concluded that, if vice-president roles were available, more junior roles were also available. The Court found that if her reference to “more junior roles” is understood to mean comparable employment, the inference made by the motion judge extended only to the conclusion that such positions were available. The Court noted that the motion judge did not ask or answer the proper question at the second stage: whether the respondent had proven that, if reasonable steps in mitigation had been taken by the appellant, she would have found a comparable position during the reasonable notice period.


Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

[Feldman, Hoy and Favreau JJ.A.]

COUNSEL:

S. Dewart and B. Hughes, for the appellants
S. Aylward, for the respondent

Keywords: Civil Procedure, Partial Settlement Agreements, Disclosure Obligations, Abuse of Process, Remedies, Stay of Proceedings, Poirier v. Logan, 2022 ONCA 350, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898, Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Tribecca Finance Corp. v. Harrison, 2019 ONSC 1926, Magnotta Winery Corporation v. Ontario (Alcohol and Gaming Commission), 2021 ONSC 178, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2021 ONSC 984, Waxman v. Waxman, 2021 ONSC 2180, Mann Engineering Ltd. v. Desai, 2021 ONSC 2245, Caroti v. Vuletic, 2021 ONSC 2778, Skymark Finance Corporation v. Her Majesty the Queen in Right of Ontario et al. (27 July 2021), Oshawa, 17/131909 (Ont. S.C.), Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66, Waxman v. Waxman, 2022 ONCA 311, Hamilton-Wentworth District School Board v. Zizek, 2022 ONCA 638, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Laudon v. Roberts, 2009 ONCA 383, Aviaco International Leasing Inc. v. Boeing Canada Inc. (2000), 9 B.L.R. (3d) 99 (Ont. S.C.)

facts:

Mr. P is the chairman of the appellant corporations, Mandrake Consultants Corporation (“Mandrake”), NexCareer Inc. (“NexCareer”) and Radar Headhunters Inc. (“Radar”), and a corporate principal of the appellants, Crestwood Preparatory College Inc. and Crestwood School. Mr. P became involved in a personal dispute with another resident in his Florida home community, Mr. PM. Subsequently, Mr. P was the target of a vicious hate mail campaign against himself and the appellant corporations, which he attributed to Mr. PM. Mr. P later learned that the respondent, Mr. S, a former employee, was directly involved in the hate mail campaign along with his business partner, Mr. T.  Mr. S’s employment with Mandrake, an executive search firm, had previously been terminated in 2011, resulting in a settlement agreement and Minutes of Settlement between Mr. S and Mandrake, NexCareer, and Radar in January 2012 (the “Mandrake Settlement Agreement”). This led to litigation in Florida and in Ontario. Mr. P sued Mr. PM in Florida in relation to the hate mail campaign. When he learned that Mr. S and Mr. T were also involved, he sued them in a separate Florida action.

In August 2017, the first Ontario action against Mr. S alleged breaches of the non-competition and confidentiality clauses of the Mandrake Settlement Agreement. That claim was amended in August 2018, without naming Mr. T as a defendant, to plead that Mr. T knowingly assisted in the breaches and that Mr. S and Mr. T were involved in the hate mail campaign.

In August 2018, the second Ontario action was commenced by the appellants against Mr. S, Mr. K and Fish Recruit Inc. (the “K defendants”), alleging that Mr. S breached the Mandrake Settlement Agreement by conspiring with the K defendants to place job candidates with Fish Recruit Inc. using confidential information from Mandrake.

In September 2018, the appellants commenced the third Ontario action against Mr. S and Mr. T in respect of their involvement in the hate mail campaign, with both parties as named defendants. Mr. P and the appellants entered into a number of settlement agreements with the defendants in the Ontario actions other than Mr. S, which contemplated the co-operation of the settling defendants with the plaintiffs in the Florida and Ontario actions.

In March 2019, in respect of the second Ontario action, the appellants entered into a Tolling and Cooperation Agreement with the K defendants which required them to provide evidence in their possession concerning Mr. S’s misappropriation of Mandrake’s confidential information and to cease doing business with Mr. S, in exchange for a release (the “K Agreement”). This agreement was not disclosed to the respondent.

In April 2018, in respect of the Florida action and prior to the commencement of the third Ontario action, Mr. P and Mr. T entered into a Tolling and Cooperation Agreement and Release of Liability Agreement (the “First T Agreement”). As part of this settlement, Mr. T agreed to provide co-operation in the Florida action and in “any related proceedings” which were defined in such a way as to include proceedings related to the hate mail campaign. The First T Agreement was not disclosed to the respondent following the commencement of the third Ontario action.

In November 2019, over one year after the commencement of the third Ontario action, which named both Mr. S and Mr. T as defendants, the First T Agreement was supplemented and amended to include the third Ontario action (the “Second T Agreement”, collectively the “T Agreements”). That agreement was signed by Mr. P on his own behalf and on behalf of the appellant corporations with intent to bind them. The terms of co-operation required Mr. T to waive certain defences and to provide Mr. P with extensive evidence, including information in his possession relevant to his relationship with Mr. S. The Second T Agreement was not disclosed to the respondent.

In April 2019, counsel delivered a proposed draft order which did not disclose the forthcoming dismissal of the action against the K defendants, which actually occurred in May 22, 2019. On May 15, 2019, counsel for the K defendants left a voicemail for the respondent’s former counsel, advising that the K defendants had settled with the plaintiffs without disclosing the co-operation terms of the K Agreement.

In July 2019, after appointing new counsel, the respondent consented to the consolidation of the Ontario actions which was sought by the appellants in the Ontario actions in January 2019. The consolidation order was obtained in July 2019 based on an affidavit of plaintiffs’ counsel which was not served on the respondent’s counsel. This affidavit referred to the dismissal of the second Ontario action against the K defendants but maintained that no “litigation agreement” was reached between the plaintiffs and the K defendants.

In August 2019, the consolidated statement of claim served and inadvertently continued to include the claims against the K defendants. After serving the consolidated statement of claim, appellants’ counsel then sought an order to preserve and inspect the respondent’s electronic devices and to implement a schedule for discoveries, without disclosure of the K Agreement or the First T Agreement.

In December 2019, the issue of disclosure of the K Agreement arose when the respondent’s new counsel requested all information regarding the K Agreement, which was initially refused. In response to a stay motion, the terms of the K Agreement were disclosed in part.

In November 2020, the T Agreements were produced in the Florida litigation. Appellants’ counsel initially took the position that they were not relevant or applicable to the Ontario action. The T Agreements were eventually produced by Mr. T’s counsel. After the T Agreements were terminated by Mr. P on February 15, 2021, they were then disclosed to the respondent on February 19, 2021. The respondent had not delivered a statement of defence.

The issue before the motion judge was whether the appellants were obliged to immediately disclose the K Agreement and the T Agreements. The motion judge found that both the K and the T Agreements fundamentally changed the litigation landscape in the circumstances of this case, as the settlement agreements changed the expected relationship between the Plaintiffs and certain Defendants from an adversarial one to a co-operative one. The settling defendants did not play a peripheral role in the action, but were central to the allegations against Mr. S in respect of the breaches of the Mandrake Settlement Agreement and in respect of the hate mail campaign and there was a natural expectation that such conspirators would have a common interest in defeating the plaintiffs’ claims.

The motion judge also found that even though the settling defendant had not yet pleaded in the action, the defendants should know before doing so whether, despite the claims in the statement of claim, another defendant is, in fact on the plaintiff’s side and providing assistance to the plaintiff. It would be contrary to the rationale for the disclosure obligation to hold that it is not triggered before production and discovery are scheduled.

The motion judge concluded that the appellants’ failure to disclose the settlement agreements that “fundamentally changed the landscape of the litigation” required a permanent stay of the proceedings against the respondent.

ISSUES:
  1. Did the motion judge err by failing to identify any pleaded position or other representation from which the settling defendants switched?
  2. Did the motion judge err in finding that co-defendants are presumed to be aligned with each other in an action?
  3. Did the motion judge err in finding that the immediate disclosure obligation applies to settlements with defendants against whom the action is dismissed?
HOLDING:

Appeal dismissed.

REASONING:
  1. No.

The Court held that the position of the parties reflected in the pleadings is not an essential part of the disclosure test and is not a condition precedent or a legal requirement to the determination that the obligation to disclose has arisen. The court was not limited to an examination of the pleadings in order to discern whether the settlement agreement significantly altered the adversarial relationship among the parties. In Handley Estate v. DTE Industries Limited the court approved the test from Aviaco International Leasing Inc. v. Boeing Canada Inc. that referred to a change in the “apparent relationships” between any parties “that would otherwise be assumed from the pleadings or expected in the conduct of the litigation”.

Additionally, the Court noted that to hold otherwise could defeat the intent of the disclosure obligation which is to ensure that when parties take steps in the litigation, and when the court makes rulings, the parties and the court are not being actively misled as to the consequences of those steps or rulings.

  1. No.

The appellant submitted that the motion judge erred by failing to conduct the necessary inquiry, in the absence of pleadings, to determine whether there was other evidence to establish that the settling defendants would be expected to be aligned in their positions with the respondent.  The appellants further submitted that the motion judge erred by relying instead on the expectation that where two defendants are alleged to have conspired together or been involved in joint wrongdoing, they “would have a common interest in defeating a plaintiff’s claim”. The appellants postulate that Mr. S may well have expected that Mr. T would seek to put all the blame on him for the hate mail campaign, or that the K defendants would deny that they knew that the information they were receiving from him was confidential.

The Court did not give effect to this argument, as it amounted to an attack on the inferences drawn by the motion judge from the record and the application of the legal test to those facts. The motion judge made no palpable or overriding error in drawing the inference from the statement of claim that one would expect the defendants to be adverse to the plaintiffs’ interest based on the allegations of conspiracy and common action.

The Court found that motion judge was not required to find any specific misrepresentation. The motion judge correctly reviewed the specific co-operation terms in the K Agreement and the Second T Agreement to support her finding that there was a change in the relationship between the plaintiffs and the settling defendants from an adversarial one to a co-operative one. Finally, the Court noted that the motion judge was entitled to determine that the conduct required of the settling defendants under the terms of these settlement agreements would not be expected by the non-settling defendant in the normal course of the litigation.

  1. No.

The appellants argued that the obligation of immediate disclosure does not apply where the action is promptly dismissed against a settling defendant. The Court disagreed and held that the obligation of immediate disclosure applies to agreements where, by definition, the claim against the settling defendant is discontinued in exchange for the settling defendant’s co-operation in the plaintiff’s action against the non-settling defendant. The Court stated that, in any event, Mr. T remained a defendant in the action due to the termination of the Second T Agreement and the K defendants had ongoing disclosure obligations under the K Agreement.


10443204 Canada Inc. v. 2701835 Ontario Inc., 2022 ONCA 742

[Miller, Zarnett and Coroza JJ.A.]

COUNSEL:

S. Bieber and R. Trenker, for the appellants
M. I. Rotman and Y. Jaimangal, for the respondent

Keywords: Contracts, Interpretation, Entire Agreement Clauses, Defences, Rescission, Fraudulent Misrepresentation, Civil Procedure, Summary Judgment, Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 1018429 Ontario Inc. v. Fea Investments Ltd. (1999), 179 D.L.R. (4th) 268 (Ont. C.A.), Hasham v. Kingston (1991), 4 O.R. (3d) 514 (Div. Ct.), Soboczynski v. Beauchamp, 2015 ONCA 282, Free Ukrainian Society (Toronto) Credit Union Ltd. v. Hnatkiw et al., [1964] 2 O.R. 169 (C.A.), Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19

FACTS:

In May 2019, C. P. and 2701835 Ontario Inc. (collectively the “appellants”) entered into a purchase agreement (the “APS”) with the respondent. Under the APS, the appellants agreed to purchase a coin laundry business located in Brampton, Ontario from the respondent. A deposit was paid on the signing of the APS. The APS contemplated the balance being paid on closing, which was originally scheduled for June 27, 2019. The APS contained an entire agreement clause which provided, in part, as follows: “There is no representation, warranty, collateral agreement or condition, affecting this Agreement other than as expressed herein.”

The APS was conditional on the right of the appellants to attend the business for at least 15 days to “verify the income”, which gave the appellants the right to terminate the APS within a specific time window if not satisfied. The appellants did not exercise any right to terminate.

In June 2019, the parties agreed to amend the terms concerning how the purchase price would be paid, and they proceeded to close the purchase in July 2019. In November 2019, the respondent commenced an action against the appellants alleging that there was default in payment of an instalment, such that the entire balance of the purchase price was now due. The appellants defended and counterclaimed. They alleged that the APS and the obligations they undertook in favour of the respondent on its completion had been the result of fraudulent or negligent misrepresentations made to them by the respondent and its principal concerning the gross revenues of the coin laundry business.

The appellants swore that in the negotiations leading up to the APS, the respondent’s principal assured him that the business was profitable, telling him that it generated $12,000 per month in revenue. The appellants stated that they entered into the APS “[b]ased on these representations”. The appellants described how the APS was conditional on verifying income of the business by attending at it for 15 days, and that C.P. had attended 14 times and was provided, by the respondent’s principal’s son, with certain daily totals which were consistent with the $12,000 per month figure. C.P. deposed that in light of the revenue generated from the time the sale closed, he believed that the respondent’s principal “misrepresented the gross income of the business in order to get me to purchase it” and that the daily totals provided when he attended had been falsified “in order to induce me to purchase the business, a representation which I relied upon in doing so”.

The motion judge observed evidence that $12,000 was provided on a one-page summary financial statement given by the respondent’s real estate agent to the appellants after the APS was signed, and that the respondent’s principal had admitted the figure was his own calculation. The motion judge also noted the appellants’ email expressing the agreement to proceed with a vendor take-back mortgage “included calculations in which he states he relied on the $12,000 monthly income … in his assessment of his ability to repay the mortgage.”

The motion judge identified the issue to be whether the appellants’ claim of fraudulent misrepresentation raised a genuine issue for trial. He concluded that the entire agreement clause should be enforced, and accordingly, he found that there was no genuine issue that required a trial and dismissed the action by way of summary judgment.

ISSUES:
  1. Did the motion judge err in giving the entire agreement clause preclusive effect?
  2. Did the motion judge find that there was no evidence of any fraudulent misrepresentations by the respondent independent of the effect of the entire agreement clause?
HOLDING:

Appeal allowed.

REASONING:
  1. No.

The Court noted that a fraudulent misrepresentation affords a defence to a claim on a contract, because a contract that results from a fraudulent misrepresentation may be avoided or rescinded by the victim of the fraud (Fea Investments Ltd.). A clause in a contract that purports to limit remedies arising from a misrepresentation does not immunize the maker of a fraudulent misrepresentation from the remedies available to the innocent party (Fea Investments).

In Hasham v. Kingston, the clause in issue excluded liability for all representations outside the terms of the contract. The Divisional Court found that the clause could not apply to a misrepresentation that was found to be fraudulent. The reasoning in Hasham was applied by the Court in Fea Investments to conclude that a clause in a contract that limited remedies for misrepresentation did not apply to fraudulent misrepresentations.

In the Court’s view, this was exactly the conclusion reached in Royal Bank of Canada v. 1643937 Ontario Inc, (“RBC”) at paragraph 43: “the defence of misrepresentation is not precluded or diminished by reason only of the existence of an entire agreement clause”.

The Court held that in this case, the motion judge’s conclusion that the entire agreement clause should be “enforced” to preclude the defence of fraudulent misrepresentation departed from the true holding of RBC for two erroneous reasons.

First, the Court held that the motion judge considered RBC to be distinguishable because it was a case of unequal bargaining power. Rather, the Court observed that the court in RBC did not premise its finding about the effect of an entire agreement clause on a fraudulent misrepresentation defence on unequal bargaining power between the parties in that case – it described the effect as something that was already “well-established”. Further, the Court held that a conclusion that an entire agreement clause will be effective to preclude a defence based on fraudulent misrepresentation where the parties have equal bargaining power cannot be drawn from Fea Investments or Hasham. The Court concluded that the policy of the law to discourage fraud is applicable to cases of equal and unequal bargaining power.

Second, the Court held that the motion judge took the word “only” in the passage from RBC – “the defence of misrepresentation is not precluded or diminished by reason only of the existence of an entire agreement clause” – to allow consideration of other factors, the presence of which made the entire agreement clause enforceable to preclude the fraudulent misrepresentation defence. This included the opportunity to ask for better contractual protections, such as a guarantee of income, to terminate the transaction under certain conditions, to hire professional advisors, and to do due diligence. As the motion judge said, even if a misrepresentation was made, “there were several opportunities for the [appellants] to conduct their own due diligence, to obtain independent legal, accounting or real estate advice, and to walk away from the deal before it closed.” The Court observed that the motion judge did not find that the appellants, at any relevant time before closing, learned the true facts and therefore knew the representations made to them were false.

On this second point, the Court reiterated that it is settled law that such opportunities do not deprive the appellants of their right to avoid the contract on the basis of fraudulent misrepresentation.  Ultimately, the Court held that one cannot take an entire agreement clause, which cannot on its own preclude a defence of fraudulent misrepresentation, combine it with a failure of a defendant to take opportunities or exercise due diligence to discover the truth, which on its own cannot preclude such a defence, and treat them together as having that preclusive effect.

  1. No.

The respondent relied on a single sentence in the motion judge’s reasons as follows:

Without recounting the elements [of the tort of fraudulent misrepresentation], I note that there is no evidence from the affidavit or cross-examination which would suggest that [the respondent’s principal] made a false misrepresentation that would invoke this tort given the circumstances of this case.

The respondent argued that the sentence meant that there was no evidence of a statement by the respondent that was false, or that was false to the knowledge of the respondent.

The Court rejected this argument for the following reasons: 1) the motion judge had engaged in an analysis of the effect of the entire agreement clause, an analysis which would have been completely unnecessary if he was satisfied there was no genuine issue requiring a trial that a knowingly false statement had actually been made; 2) before and after the sentence the respondent pointed to noted a factual dispute about whether the representation of monthly revenues had been made before the APS was signed; 3) there was no finding about what the monthly revenues of the business were compared to what C.P. said had been represented by the respondent about them; and 4) the motion judge stated there was no risk of inconsistent results given the continuing action against the real estate agent and broker, because he was not deciding if the $12,000 per month revenue representation was made before the APS was signed.

The Court held that taken together, there was no finding of a lack of a genuine issue for trial independent of noted considerations. The Court remitted the matter to trial.


Don Mills Residents Inc. v. Toronto (City), 2022 ONCA 752

[Gillese, Miller and Coroza JJ.A.]

COUNSEL:

C. Harris and S. Spitz, for the appellant
R. Zuech and M Lowson, for the respondent

Keywords: Municipal Law, Site Plan Control, Contracts, Interpretation, Intention to Create Binding Legal Relations, Essential Terms, Agreements to Agree, Minutes of Settlement, Enforceability, Privity, Remedies, Specific Performance, Damages, Planning Act, R.S.O. 1990, c. P.13, s. 7 and 37, Hi-Rise Structures Inc. v. Scarborough (City) (1992), 10 O.R. (3d) 299 (C.A.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

FACTS:

The respondents City of Toronto (the “City”) and C/F Realty Holding Ltd. (“CF”) and the appellant entered into minutes of settlement (the “minutes”) respecting a planning appeal launched by CF. The appellant argued that the minutes required the City to construct a community centre at 966 Don Mills Road, a site a little south of Lawrence Avenue known as the Don Mills Centre (“DMC”).

In 2001, CF applied to amend the portion of the North York Official Plan that applied to the site, as well as the relevant zoning by-law. In 2007, CF appealed to the Ontario Municipal Board (“OMB”), now the Ontario Land Tribunal, for approval of Phase 2 of its proposed redevelopment. The appellant was granted party status in CF’s appeal. In March 2010, the parties reached an agreement and provided the OMB with minutes in resolution of the appeal. The minutes provided community benefits from the redevelopment including creation of the Don Mills Community Centre (“DMCC”). The minutes considered terms respecting the DMCC would be implemented through an agreement under s. 37 of the Planning Act.

On February 25, 2011, CF and the City registered on title the s. 37 agreement contemplated by the minutes. As the appellant was not the owner of the lands in question, it was not a party to the s. 37 agreement. The agreement allowed the parties to amend it on consent of both CF and the City. The s. 37 agreement did not require the appellant’s consent to any changes.

Since the minutes were executed in 2010, the area surrounding the DMC had experienced dramatic population growth. In response to this, the City re-evaluated its plans for community services in the area. In 2018, the City approved redevelopment plans for a 60-acre plot of land at Don Mills Road and Eglinton Avenue East (the “Celestica site”). As part of the redevelopment, the City secured 5.58 acres of parkland and a site for a large recreation facility.

In light of the changing needs of the community, the City recommended the creation of a 125,000 square foot facility known as the Celestica Recreation Centre (“CRC”). The CRC would be located at the Celestica site and serve the entire Don Mills community, replacing the proposal to have two smaller community centres, one at the Celestica site at Don Mills and Eglinton, and one at the DMC at Don Mills and Lawrence. In July 2019, City Council voted in favour of the CRC proposal and effected the amendments to the s. 37 agreement with CF. This effectively ended the plans for the DMCC at Don Mills and Lawrence.

The appellant brought an application before the Superior Court seeking: (1) a declaration that the respondent and/or CF were required to build a community centre at the DMC; (2) an injunction requiring the respondent and/or CF to build the DMCC, pursuant to the terms of the minutes; and (3) an order to proceed to trial to determine consequential damages from the alleged breach of the minutes. The application judge dismissed the application. She found that the minutes did not constitute a binding contract capable of enforcement and, in any event, specific performance would not be appropriate. The application judge also found that the appellant had not suffered any compensable damages.

The application judge found that the minutes should be read in the context of the Planning Act, which permits reconsideration of planning decisions when considering broader community interest. She concluded that (1) the minutes did not obligate the respondent to construct the community centre; and (2) the minutes did not constitute a binding contract between the City and the appellant. The application judge found that although the City had binding obligations with respect to certain matters in the minutes, the obligations came from the s. 37 agreement between the City and CF, to which the appellant was not a party.

The appellant appealed on the basis that the application judge erred in law and in fact in determining that the minutes did not constitute a binding contract. The appellant also argued that the application judge erred by assessing the merits of the respondent’s decision to not construct the DMCC, and erred in her assessment of the available remedies. The appeal related only to the application brought against the City and not against CF.

ISSUES:
  1. Did the application judge err in characterizing the minutes as an instrument under the Planning Act rather than as a binding settlement agreement?
  2. Did the application judge err by considering the merits of the agreement?
  3. Did the application judge err in characterizing the minutes as an agreement to agree?
HOLDING:

Appeal dismissed.

REASONING:
  1. No

The appellant’s position was that both the language of the minutes and the surrounding circumstances that led to them demonstrated that the parties intended to be bound by the minutes. The appellant argued that, any change in circumstances that occurred after the minutes were signed could not have any relevance to the interpretation of the minutes, and the application judge erred in taking them into account. The appellant argued that the minutes should be interpreted according to the ordinary rules of contractual interpretation in the same way as any other minutes of settlement.

The Court confirmed that the application judge approached the minutes on the basis that the agreement was analogous to other agreements made under the Planning Act, such as the site plan agreement that was at issue in Hi-Rise Structures Inc. v. Scarborough (City). The application judge relied on the Court’s holding in Hi-Rise that even “though provisions of the Planning Act state that ‘every decision or order of the [OMB] is final,’ this did not mean that all decisions were ‘everlasting’ … such a reading may ‘prevent a fresh consideration of the planning of the community’ and do a ‘disservice to the broader community interest’.” With these principles in mind, the Court noted that the application judge concluded that the express consent of the appellant was not required before amendments could be made to the applicable zoning by-law, official plan, or the minutes of settlement.

The Court found that the application judge did not make any reviewable error in finding that the minutes were not, in substance, a contract and do not generate the contractual obligations claimed by the appellant. The Court repeated that the minutes must be understood within the context of the Planning Act.

The appellant argued that the application judge erred in analogizing the minutes to a site plan agreement made under the Planning Act and treating Hi-Rise as governing. The minutes differed fundamentally from a site plan, the appellant argued, because a site plan agreement can be the subject of an appeal to the Ontario Land Tribunal (OLT). The minutes, as an ordinary contract that exists outside the Planning Act regime, cannot.  The appellant also argued that the minutes, on their face, evidenced a mutual intention to create a binding contract that ought to be respected. The agreement was a means to settle the matters at issue between the City and CF, paving the way for the OMB to approve the CF redevelopment.

The Court was not persuaded by the appellant’s argument that the site plan agreements were planning instruments that are creatures of statute, and that minutes are not. The Court noted that what constitutes a planning instrument is not defined exhaustively in the Planning Act. The Court further commented that land use planning is a complex process, and Hi-Rise does not purport to limit the instruments by which a municipality effects site plan control to site plan agreements. The minutes were the means of settling appeals before the OMB. Those appeals were part of the land use planning process and had a public dimension. The minutes were a single step in a process that was to be implemented through various other agreements to which the appellant would not be a party. Thus, the Court concluded that the context was far removed from a paradigmatic bilateral commercial contract.

The Court stated that the hurdle faced by the appellant was that the application judge interpreted the minutes differently and that  this interpretation was entitled to deference: Sattva Capital Corp. v. Creston Moly Corp. Accordingly, the Court held that the appellant would have to identify either a palpable and overriding error or an extricable error of law. The Court found that the appellant failed to do so.

The Court further stated that a key finding by the application judge was that the minutes did not create a legal obligation on the respondent to build the recreation centre. That obligation was solely carried by CF. The application judge’s conclusion was that “[t]he minutes set out the framework for the Phase 2 redevelopment of the DMC site as requiring further agreements, such as the section 37 agreement, to implement the intent of the minutes. At most, the minutes outlined a planning framework to be implemented via the execution of various planning instruments, such as the zoning by-law amendment and official plan amendment approved by the OMB, the section 37 agreement executed by the City and CF, and several other agreements yet to be executed … The minutes did not govern a contractual relationship between the City and the [appellant].” The Court concluded that this finding was dispositive not only of this issue, but of the appeal as a whole.

  1. No

The Court stated that the application judge addressed the merits of whether the CRC would better serve the Don Mills community and be a better use of the City’s resources than a community centre at the DMC and concluded that the CRC would better serve the community and be a better use of public resources.

The Court questioned why the City raised this issue before the application judge and why the application judge answered it. As the appellant argued, the merits of the two proposals had no bearing whatsoever on the task before the application judge, which was to interpret the minutes and determine what legal obligations it established, if any. The Court found although the error was a palpable one, it is not overriding. The analysis played no part in the line of reasoning by which the application judge determined that the minutes did not compel the City to build the community centre. Accordingly, the error had no impact on the disposition of the appeal.

  1. No

The appellant argued, in the alternative, that the application judge erred in characterizing the minutes as an agreement to agree. The Court noted that the application judge stated that had she not held that the minutes were part of a land use planning process, she still would not have found the minutes to be an enforceable agreement because the minutes on their face failed to satisfy the requirements of a valid and enforceable agreement.

The appellant argued that in finding the minutes to be an “agreement to agree” and lacking the requisite terms to be a binding contract, the application judge demanded too much of the minutes and ignored crucial context. The fact that the agreement contemplated and required further agreements to implement it, and that the appellant would not be a party to some of those agreements, did not mean that the minutes were therefore lacking in the particulars needed to form a contract. The essential terms, according to the appellant, are the parties, the period, and the price, and the minutes identified each of these: the minutes set out the triggering events for the start of construction and the substantial completion date, they set a value of $17 million for the construction of the community centre, and they identified the parties to the settlement as the appellant, the City, and CF.

The Court disagreed, stating that the application judge’s interpretation of the minutes was reasonable and was entitled to deference by the Court. The Court reasoned that the application judge properly interpreted the terms of the minutes as a whole, and with due appreciation for the planning context in which the minutes were reached. The Court concluded that there was no basis to intervene in the application judge’s decision.


SHORT CIVIL DECISIONS

Art for Everyday Inc. v. Canarctic J.F.K. Inc., 2022 ONCA 747

[Simmons, Benotto and Favreau JJ.A.]

COUNSEL:

P. Griffin and M. Wine, for the appellant
I. Cantor, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Default, Termination, Notice

Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2022 ONCA 755

[Pardu J.A. (Motion Judge)]

COUNSEL:

R. Townshend and B. Brookwell, for the appellants Chippewas of Nawash Unceded First Nation and Saugeen First Nation
M. Beggs, C. Tsang, B. Ennis, M. McCulloch and S. Voteti, for the respondent The Attorney General of Canada
D.J. Feliciant, R. Ogden and J. Mc Randall, for the respondent His Majesty the King in Right of Ontario
T. Williams-Davidson, M. Jackson, and N. Baker-Grenier, for the proposed intervener the Council of the Haida Nation (M53717)
T. Slade, for the proposed intervener Walpole Island First Nation (M53719)
L.C. Fong, Rachel Ariss and Ruben Tillman, for the proposed intervener Heiltsuk Nation (M53726)
M. Price, for the proposed interveners Songhees Nation and Esquimalt Nation (M53820)

Keywords: Aboriginal Law, Real Property, Aboriginal Title to Submerged Land, Public Right of Navigation, Civil Procedure, Intervenors, Fresh Evidence, Rules of Civil Procedure, r. 13.03(2), Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 74 O.R. (2d) 164 (C.A.), Foster v. West, 2021 ONCA 263, Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, Keewatin v. Ontario (Natural Resources), 2012 ONCA 472, McIntyre Estate v. Ontario (Attorney General) (2001), 26 C.P.C. (5th) 312 (Ont. C.A.)

Ryan v. Herbert, 2022 ONCA 750

[Simmons, Benotto and Favreau JJ.A.]

COUNSEL:

K. Dunham, for the appellant
I. Iwasykiw, for the respondent

Keywords: Family Law, Civil Procedure, Approval of Settlements, Rules of Civil Procedure, rr. 7.08, 21.01(3), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 87(2), Azzeh v. Legendre, 2017 ONCA 385


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