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Good afternoon,

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario for the week of May 10, 2021.

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In Fontaine v. Canada (Attorney General), the Court of Appeal considered a motion for a stay pending appeal in the context of the ongoing Indian residential school settlement case. A stay was not granted, and a request for a preservation order with respect to documentary records of certain claimants was also dismissed.

In Dorman v. Economical Mutual Insurance Company, the Court upheld the motion judge’s ruling that no court actions are permitted with respect to disputes about entitlements or amounts of statutory accident benefits, and that the Licence Appeal Tribunal had exclusive jurisdiction over the issue.

In Knapp v. Knapp, the Court upheld the trial judge’s decision granting joint custody, parallel decision-making authority and equal parenting time. The Court also confirmed that the trial judge was not bound by the recommendation of the Office of the Children’s Lawyer, nor the status quo. When a trial judge makes extensive factual findings that reject the foundation of the report, the judge is entitled to make his or her own assessment of the best interests of the child.

Other topics covered this week included anti-SLAPP, the dismissal of an appeal challenging on Charter grounds an Ontario Securities Commission regulation that allows individuals to purchase stocks in the “exempt market” if they meet certain income and net worth thresholds, and several decisions relating to appellate jurisdiction.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314

Keywords: Insurance, Statutory Accident Benefits, Administrative Law, Licence Appeal Tribunal, Torts, Breach of Statutory Duty, Negligent Investigation, Civil Procedure, Striking Pleadings, Jurisdiction, Class Proceedings, Settlements, Court Approval, Insurance Act, R.S.O. 1990, c. I.8, s. 280, Rules of Civil Procedure, Rules 21.01(1)(a) and 21.01(3)(a), Class Proceedings Act,1992, S.O. 1992, c. 6, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

Fontaine v. Canada (Attorney General), 2021 ONCA 313

Keywords: Civil Procedure, Class Proceedings, Indian Residential School Settlement, Appeals, Jurisdiction, Final or Interlocutory, Stay Pending Appeal, Documents, Preservation Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674), Heidari v. Naghshbandi, 2020 ONCA 757, Henderson v. Henderson, 2014 ONCA 571, Ducharme v. Hudson, 2021 ONCA 151

Grist v. TruGrp Inc., 2021 ONCA 309

Keywords: Torts, Defamation, Unlawful Interference with Economic and Contractual Relations, Abuse of Process, Labour and Employment, Successor Employers, Departing Employees, Unfair Competition, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Grant v. Torstar, 2009 SCC 61, Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008- Rel. 3) 2 nd ed. (Scarborough: Carswell, 1999)

Knapp v. Knapp, 2021 ONCA 305

Keywords: Family Law, Custody and Access,  Maximum Contact Principle, Parenting Plan, Best Interests of the Child, Office of the Children’s Lawyer, Recommendations, Civil Procedure, Variation, Material Change in Circumstances,Offers to Settle, Substantial Indemnity Costs, Evidence, Hearsay, Fresh Evidence, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(10) (as amended to section 16(6)), Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 20(1), Family Law Rules, O. Reg. 114/99, Rules 15 and 24, Folahan v. Folahan, 2013 ONSC 2966, Rigillo v. Rigillo, 2019 ONCA 647

Short Civil Decisions

2495940 Ontario Inc. v. 2633346 Ontario Inc., 2021 ONCA 312

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Priority, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322

Keywords: Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(3), 7(1) and 7(3), Rules of Civil Procedure, rule 61.16(2.2)

Hilson v. Evans, 2021 ONCA 318

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Transfer, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 110(1), Sprenger v. Paul Sadlon Motors Inc., 2006 CarswellOnt 6004 (CA)

Latner v. Ontario Securities Commission, 2021 ONCA 316

Keywords: Securities, Purchase, “Exempt Market”, Income Threshold, Constitutional Law, Equality Rights, Analogous Grounds, Economic Class, Canadian Charter of Rights and Freedoms, s. 15(1), Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

CIVIL DECISIONS

Dorman v. Economical Mutual Insurance Company, 2021 ONCA 314

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

G. Frelick, D. Salmon and A. Mortimer, for the appellants/respondents by way of cross-appeal (C68563) and the respondents/respondents by way of cross-appeal (C68566) Her Majesty the Queen in Right of Ontario, P.H. and B.M.

R. Bohm, P. Harte, J. Ralston and K. Kemp, for the respondent/respondent by way of cross-appeal (C68563) and the appellant/respondent by way of cross-appeal (C68566) B.D., and for the respondents (C68563) and the appellants/respondents by way of cross-appeal (C68566) J.M., W.E., J.N, D.M., M.B., J.R.R., M.C, G.G., B.N. and D.S., and for the respondents (C68563) and the appellants (C68566) S-L.B., C.B. and K.B., and for the respondent/respondent by way of cross-appeal (C68563) and the appellant (C68566) F.S.

M. Gelowitz, L. Fric and C. Breadon, for the respondent/appellant by way of cross-appeal (C68563 & C68566) Economical Mutual Insurance Company

B. Shaw and S. Mamo, for the respondents (C68563 & C68566) Intact Financial Insurance and Belair Insurance Company Inc.

P. Martin, S. Armstrong and D. Samadmoten, for the respondents (C68563) and the respondents/appellants by way of cross-appeal (C68566) Aviva Insurance Company of Canada, Co-operators General Insurance Company, CUMIS General Insurance Company and Gore Mutual Insurance Company

A. Hamilton, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) Wawanesa Mutual Insurance Company

C. Lonsdale and A. Bond, for the respondent/appellant by way of cross-appeal (C68563) and the respondent (C68566) Certas Home and Automobile Insurance Company

B. Bain, S. Kugler and H. Vettyvel, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) TD Insurance

C. Woodin and J. Blinick, for the respondents (C68563 & C68566) St. Paul Fire and Marine Insurance Company of Canada and Travelers Insurance Company of Canada

G. Zacher, A. Urbanski and P. O’Kelly, for the respondents (C68563) and the respondents/appellants by way of cross-appeal (C68566) Unifund Insurance Company and Allstate Insurance Company of Canada

P. Tushinski and G. Eckler, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) Commonwealth Mutual Insurance Company

L. Armstrong, for the respondent (C68563) and the respondent/appellant by way of cross-appeal (C68566) Echelon General Insurance Company

Keywords: Insurance, Statutory Accident Benefits, Administrative Law, Licence Appeal Tribunal, Torts, Breach of Statutory Duty, Negligent Investigation, Civil Procedure, Striking Pleadings, Jurisdiction, Class Proceedings, Settlements, Court Approval, Insurance Act, R.S.O. 1990, c. I.8, s. 280, Rules of Civil Procedure, Rules 21.01(1)(a) and 21.01(3)(a), Class Proceedings Act, 1992, S.O. 1992, c. 6, Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615

facts:

The plaintiff appellants filed proposed class actions against 15 auto insurers and the Financial Services Commission of Ontario (FSCO) alleging that the insurers had improperly reduced their statutory accident benefits (“SABs”) by deducting HST and that the FSCO wrongfully failed to investigate the practices after numerous complaints.

Two of the insurers entered into tentative settlement agreements, conditional on the proceedings being certified as a class action, and court approval. The FSCO and other respondent insurers brought motions under rule 21.01(1)(a) and 21.01(3)(a) of the Rules seeking to stay or dismiss the class actions for lack of jurisdiction. The motion judge determined that the Superior Court lacked jurisdiction by virtue of s. 280 of the Insurance Act, which gives exclusive jurisdiction over entitlement to, and the amount of, SABs to the Licence Appeal Tribunal (“LAT”). The motion judge therefore granted the motion and dismissed the proposed class actions and settlements. However, he dismissed the Crown’s motion because it was not plain and obvious that the actions against FSCO were barred by s. 280 because those actions were concerned with the FSCO’s conduct, not SABs.

issues:
  1. Did the motion judge err in dismissing the proposed class actions and in finding that the LAT had jurisdiction by virtue of s. 280 of the Insurance Act?
  2. Did the motion judge err in not dismissing the claims against the FSCO?
  3. Should leave to appeal costs be granted?
holding:

Appeal dismissed.

reasoning:
  1. No.

Section 280 of the Insurance Act is clear and provides a clear answer to the plaintiff appellants’ claim. Section 280 reads as follows:

280 (1) This section applies with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

(2) The insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute described in subsection (1).

(3) No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.

The Court of Appeal agreed with the motion judge that no court actions are permitted with respect to disputes about entitlements to SABs or the amount of SABs as the LAT has exclusive jurisdiction: Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615. The plaintiff appellants cannot avoid this result with policy arguments that the exclusive jurisdiction of the LAT undermines the purpose of the Act or hinders access to justice. The Act is clear and must be given effect.

It also did not aid the appellants that s. 280 does not specifically prohibit representative actions. The Act cannot be read as prohibiting only individual actions. Moreover, the Class Proceedings Act, 1992, S.O. 1992, c. 6 is procedural in nature and does not confer jurisdiction on the court that does not otherwise exist.

  1. No.

The Court saw no error in the motion judge’s analysis of the claims against the FSCO. There is nothing in s. 280 that deprives the Superior Court of its jurisdiction over tortious claims such as the ones advanced against the FSCO. While such a finding is predicated on a finding that a wrong was committed under the SAB scheme, that did not alter the nature of the claim against the FSCO.

  1. No.

The respondent insurers alleged that the motion judge erred by ignoring and misapplying relevant factors, by considering irrelevant and improper factors, by undervaluing the result of the motion and the importance of the issues at stake. The Court dismissed these submissions as it is well established that costs are within the discretion of the motion judge and unless the award is plainly wrong, an appellate court should not interfere. It was open to him to conclude that this was a straightforward motion on a jurisdictional question and that the costs incurred were excessive in the circumstances. Although he may have put the matter bluntly, his conclusion reveals no error in principle and was entitled to deference.


Fontaine v. Canada (Attorney General), 2021 ONCA 313

[Paciocco J.A. (Motion Judge)]

Counsel:

M. Swinwood and F.K. Brunning, for the moving parties

C.A. Coughlan, B. Thompson and E. Coppinger, for the responding party

Keywords: Civil Procedure, Class Proceedings, Indian Residential School Settlement, Appeals, Jurisdiction, Final or Interlocutory, Stay Pending Appeal, Documents, Preservation Orders, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(2), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674), Heidari v. Naghshbandi, 2020 ONCA 757, Henderson v. Henderson, 2014 ONCA 571, Ducharme v. Hudson, 2021 ONCA 151

facts:

The Indian Residential Schools Settlement Agreement (“IRSSA”) settled the class actions and civil claims of survivors of abuse who were residents of the residential schools in Canada. The Independent Assessment Process (“IAP”) was created as a means for claimants to seek financial compensation for the abuse that they suffered at the residential schools. The moving parties were former residents of St. Anne’s Indian Residential School (“St. Anne’s”).

In March 2021, the responding party filed a Request for Directions (“RFD”) requesting that an Independent Special Advisor (“ISA”) be appointed to conduct a review of certain IAP claims relating to St. Anne’s. Specifically, the request sought to determine: (i) whether adequate disclosure was available in the adjudication of each claim; (ii) if not, whether there was a conscious decision by counsel to proceed without disclosure; and (iii) if not, whether the disclosure would have likely impacted the amount of compensation awarded. The request was granted (the “Order Under Appeal”), but the moving parties sought to stay the order pending appeal, arguing, inter alia, that the Order Under Appeal undercut other related proceedings, and provided for a process not contemplated in the IRSSA.

The moving parties also sought an interim preservation order covering all documents possessed by government officials relating to St. Anne’s IAP claimants.

issues:
  1. Should the Order Under Appeal be stayed pending appeal?
  2. Should a preservation order be issued?
holding:

Motion dismissed.

reasoning:
  1. Should the Order Under Appeal be stayed pending appeal?

No. On a motion for a stay pending appeal, the overarching question to be determined is whether a stay is in the interests of justice (BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620; 2257573 Ontario Inc. v. Furney, 2020 ONCA 742). In answering this question, the factors outlined in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 are to be applied: (i) whether there is a serious issue to be determined on the appeal; (ii) whether the moving party would suffer irreparable harm if the stay were refused; and (iii) whether the balance of convenience favours either the granting or refusing of the stay. These factors are not watertight compartments, but should be considered holistically (Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674).

With respect to the first factor, the Court noted that the threshold of what constitutes a “serious issue” is relatively low, and will be satisfied provided the appeal is not frivolous or vexatious. Nevertheless, the Court concluded that there were grounds to consider the appeal as frivolous and devoid of merit, due to apparent jurisdictional issues (Heidari v. Naghshbandi, 2020 ONCA 757). Specifically, the Court characterized the Order Under Appeal as an interlocutory order, and therefore the Court of Appeal generally lacks jurisdiction to hear an appeal from such an order. The apparent lack of jurisdiction therefore undermined the seriousness of the issues to be determined, regardless of any substantive merits advanced by the moving parties (Henderson v. Henderson, 2014 ONCA 571).

In consideration of the second factor, it was concluded that many of the moving parties’ “irreparable harm” arguments focused on allegations about the harm caused by the Order Under Appeal itself. Instead, the Court reiterated that irreparable harm arguments should in fact focus on adverse effects that are likely to arise if the stay pending appeal is not granted (Ducharme v. Hudson, 2021 ONCA 151). Of the moving parties’ arguments that did not fall prey to this pitfall, the Court was not satisfied than any of them in fact met the irreparable harm threshold.

Finally, on the third factor, the Court found that the moving parties could not demonstrate any harm that supported the view that the balance of convenience favoured granting a stay. Rather, the Court noted that the responding party would be exposed to the risk of harm if a stay was granted.

2. Should a preservation order be issued?

No. In short, the moving parties did not cite any authority to support the preservation order they sought. The moving parties argued that the preservation order was urgently required to prevent the litigation from being undermined by the destruction of documents. Notwithstanding the Court’s conclusion that it had the jurisdiction to make such an order pursuant to s. 134(2) of the Courts of Justice Act, it was found that such an order would not be the interests of justice. In support of this finding, the Court expressed concerns about “judge shopping” and duplicative proceedings, the engagement of complex issues relating to the risks of preserving highly confidential documents, and the lack of any clear demonstration that the preservation order was truly necessary to prevent prejudice to the moving parties.


Grist v. TruGrp Inc., 2021 ONCA 309

[Lauwers, Miller and Nordheimer JJ.A.]

Counsel:

D.J. Bell and K. Ellins, for the appellants

D. Buntsma and R.K. MacGregor, for the respondents

Keywords: Torts, Defamation, Unlawful Interference with Economic and Contractual Relations, Abuse of Process, Labour and Employment, Successor Employers, Departing Employees, Unfair Competition, Civil Procedure, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730, Grant v. Torstar, 2009 SCC 61, Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, (2008- Rel. 3) 2 nd ed. (Scarborough: Carswell, 1999)

facts:

The respondents were former employees of the appellant. The respondents left their employment to start a competing business, the corporate respondent, and litigation ensued. In particular, the respondents brought a defamation action against the appellants, which was later discontinued. Sometime thereafter, an unrelated proceeding was commenced against the respondents before the Ontario Labour Relations Board (“OLRB”) centred on whether TruGrp, the corporate respondent, was a successor employer to the appellant company (“OLRB Application”).

In responding to the OLRB Application, the respondents attached their statement of claim from the discontinued defamation action against the appellants, which the appellants alleged contained false and defamatory statements about the appellants. The appellants then commenced the subject action against the respondents for defamation, unlawful interference with economic and contractual relations and abuse of process. The respondents brought a motion under s.137.1 of the Courts of Justice Act to have the action dismissed as a SLAPP, as it was an attempt to limit the respondents’ freedom of expression on matters of public interest. The motion judge allowed the anti-SLAPP motion and dismissed the claim, holding that there was significant public interest in the operation of the restoration industry and the retaining of other business in that line of work. While the motion judge concluded that the appellants’ claim had substantial merit, the appellants were unable to establish that the respondents had no valid defence. The motion judge held that the respondents’ expressions were covered by absolute privilege in relation to the OLRB Application.

issues:
  1. Did the motion judge err by characterizing the respondents’ expression too broadly for the purposes of s. 137.1 and by concluding it was a matter of public interest?
  2. Did the motion judge err in interpreting the test for substantial merit?
  3. Did the motion judge err in finding that the appellants did not tender sufficient evidence of harm to permit the action to proceed?
holding:

Appeal allowed.

reasoning:
  1. Yes.

To satisfy the threshold requirements under s. 137.1(3), the moving party must show (i) the “proceeding arises from an expression made by the moving party”, and (ii) “the expression relates to a matter of public interest”: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (“Pointes”). The purpose of s. 137.1 is “to circumscribe proceedings that adversely affect expression made in relation to matters of public interest, in order to protect that expression and safeguard the fundamental value that is public participation in democracy”: Pointes.

The concept of public interest has been difficult to pin down. The most detailed exploration of the concept is provided in Grant v. Torstar, 2009 SCC 61, which emphasized that the public interest is not a descriptive concept: it is not a matter of ascertaining what the public, or any subgroup, believes to be interesting, entertaining, or worth their attention. Rather, the statement must address an issue “about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”. While public interest is not limited to matters of shared public life, purely private disputes between relatively equal parties are seldom of public interest.

In the case at hand, the Court of Appeal held that the motion judge characterized the respondents’ expression too broadly. The motion judge failed to analyze the specific statements that were impugned by the appellants’ action, but rather focused on the respondents’ response as a whole. The appellants’ legal proceeding was not brought in respect of the response as a whole, but in relation to several very specific claims.

The Court agreed with the appellants’ that the motion judge erred in finding that these expressions related to public interest. Activity that unfairly reduces competition is a matter of public interest, in the sense that justice requires that such actions be proscribed for the common good. But that does not mean that every occurrence of this type of misconduct is a matter of public interest, having significance to anyone other than the parties involved and the institutions established to resolve their disputes. The nature of the respondents’ expression was fundamentally a private dispute, to which s. 137.1 did not apply.

Since the impugned statements did not relate to a matter of public interest, the respondents’ anti-SLAPP motion failed on the first stage of the test and so it was unnecessary for the Court to address the other grounds of appeal.


Knapp v. Knapp, 2021 ONCA 305

[Benotto, Miller and Trotter JJ.A.]

Counsel:

M. Stangarone, for the appellant

T. Hein and J.C. Noonan, for the respondent

Keywords: Family Law, Custody and Access,  Maximum Contact Principle, Parenting Plan, Best Interests of the Child, Office of the Children’s Lawyer, Recommendations, Civil Procedure, Variation, Material Change in Circumstances,Offers to Settle, Substantial Indemnity Costs, Evidence, Hearsay, Fresh Evidence, Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 16(10) (as amended to section 16(6)), Children’s Law Reform Act, R.S.O. 1990, c. C.12, ss. 20(1), Family Law Rules, O. Reg. 114/99, Rules 15 and 24, Folahan v. Folahan, 2013 ONSC 2966, Rigillo v. Rigillo, 2019 ONCA 647

facts:

The parties were married for over 13 years and had two children together. When they started to experience marital issues, they discussed their marriage with ‘witnesses’ from their church. In response to one of these meetings, the respondent sent the appellant the biblical passages he was referring to along with the subject line “waring [Appellant’s Name]”. Shortly thereafter, the appellant took the children and moved to a women’s shelter, denying the respondent any contact with the children citing her fear of the respondent.

The Office of the Children’s Lawyer (“OCL”), Children’s Aid Society (“CAS”) and the Crisis, Outreach and Support Team (“COAST”) were all called in to investigate and all found that the respondent was not a danger to himself or the children. However, the OCL recommended the appellant have sole custody.

The parenting dispute continued for some time, and ultimately culminated in a trial decision granting joint custody, parallel decision-making authority and equal parenting time. In making this decision, the trial judge rejected much of the appellant’s evidence, particularly her allegations that the respondent was a risk. The trial judge also rejected the recommendations of the OCL because the investigator had observed no issues with the respondent’s parenting, but instead made several erroneous assumptions and failed to consider the best interests of the children. The trial judge also ordered substantial indemnity costs to the respondent.

issues:
  1. Did the trial judge err by relying on hearsay evidence when analyzing the OCL recommendations?
  2. Did the trial judge err by failing to consider the children’s wishes?
  3. Did the trial judge err by equating the maximum contact principle with equal parenting time?
  4. Did the trial judge err by making an order that conflicted with final orders previously made on consent?
  5. Did the trial judge err by awarding costs to the respondent?
  6. Should leave be granted to adduce fresh evidence on appeal?
holding:

Appeal dismissed.

reasoning:

The Court of Appeal first addressed two themes that permeated the appellant’s submissions – that the trial judge rejected the OCL recommendation, and that the trial judge altered the status quo. The Court noted that a trial judge is not bound by the OCL recommendations, nor the status quo. The OCL recommendation is just that, a recommendation. When a trial judge makes extensive factual findings that reject the foundation of the report, the judge is entitled to make his or her own assessment of the best interests of the child. In terms of the status quo, the trial judge found that the appellant wrongly altered the status quo by removing the children and moving to a women’s shelter with little basis to do so. This did not make the appellant the primary caregiver, and the trial judge was entitled to find as much.

  1. Hearsay Evidence

No. The appellant submitted that the report from COAST and medical records filed with the court were presumptively inadmissible as hearsay. The Court rejected this argument because many of the medical reports were filed into evidence by the appellant and the COAST report was discussed in the OCL report upon which the appellant relied. Both parties were cross-examined on the various reports and neither denied their accuracy. The appellant could not now allege this was an error.

  1. Views of the Children

No. The views and preference of children must be considered in all matters affecting them, however, they must be viewed in context. In this case, the mother had taken the two children away from their father and kept away from him while the mother professed fear of him. The Court noted that it would be naïve to think this did not impact the views of the children. The trial judge rejected the appellant’s “fear” and found that her flight to the shelter was a litigation tactic. The children’s preferences had to be viewed in this context.

While the parties agreed the children’s views would be put in evidence through the OCL report, the trial judge found the report was not based on the wishes of the children but the clinician’s own views. The trial judge rejected the foundation of the report and went on to assess the best interests of the children herself.

  1. Maximum Contact

No. The appellant submitted that the trial judge erred by placing an onus on the appellant to establish that equal parenting was not in the children’s best interests. The Court held that the trial judge not did not place such an onus but when read as a whole, her reasons demonstrated that she was alive to the appropriate principles. The maximum contact principle does not necessarily require equal parenting time: Rigillo v. Rigillo, 2019 ONCA 647. Rather, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child: Divorce Act, s. 16(6). The trial judge considered these principles and applied them to her factual findings and thus did not err in her assessment of the maximum contact principle.

  1. Variation of a Final Order

No. Early in the parenting dispute, an order that was marked final set parameters around the parties’ relationship. The appellant submitted that because of this order, the trial judge did not have jurisdiction to make the orders she did, particularly surrounding decision-making, because a final order can only be changed pursuant to a motion to change under rule 15 of the Family Law Rules.

The Court of Appeal rejected this submission, noting that it bordered on frivolous. Rule 15 does not give jurisdiction, it provides a procedure for parties who wish to change a final order. It would be wrong to suggest that it limits a trial judge’s discretion. The trial judge had jurisdiction to determine the best interests of the children in all parenting matters and was in no way bound by an earlier order. Further, the Court held that despite the order being marked final, it had the hallmark of an interlocutory order – all matters of parenting remained outstanding and subject to trial.

  1. Costs

No. The trial judge found that the appellant had acted unreasonably on many occasions and unnecessarily delayed the proceeding. The respondent also made two offers to settle whereby he would get less than 50% access. Given the appellant’s conduct and that the respondent was more successful at trial than his settlement offers, the trial judge held the respondent was entitled to substantial indemnity costs. The appellant sought leave to appeal this.

The Court of Appeal saw no reason to interfere with the trial judge’s discretion or overall assessment of costs. The trial judge considered the conduct of the appellant and the guidance of rule 24. The Court of Appeal did comment that substantial indemnity and full indemnity scales of cost do not apply to rule 24, but the reference to those scales did not cast doubt on the trial judge’s overall assessment.

  1. Fresh Evidence

While there is considerably more flexibility in family matters to adduce fresh evidence on appeal, the Court found that the proposed evidence would not assist with the determination of any issues on appeal and so refused leave to admit it.


SHORT CIVIL DECISIONS

2495940 Ontario Inc. v. 2633346 Ontario Inc., 2021 ONCA 312

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

S. Turton, for the moving party

B. Amouzgar and S. Savic, for the responding party

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Priority, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Waldman v. Thomson Reuters Canada Ltd., 2015 ONCA 53

Halton (Regional Municipality) v. F. Greco & Sons Limited (Greco Construction), 2021 ONCA 322

[Nordheimer J.A. (Motions Judge)]

Counsel:

T. Gordner, for the moving and responding party, Regional Municipality of Halton

P.H. Starkman, for the moving and responding party, L.S.

Keywords: Civil Procedure, Appeals, Jurisdiction, Leave to Appeal, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134(3), 7(1) and 7(3), Rules of Civil Procedure, rule 61.16(2.2)

Hilson v. Evans, 2021 ONCA 318

[Nordheimer J.A. (Motions Judge)]

Counsel:

H.W. Reininger, for the moving party

O.H. Niedzviecki, for the responding party

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Transfer, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 110(1), Sprenger v. Paul Sadlon Motors Inc., 2006 CarswellOnt 6004 (CA)

Latner v. Ontario Securities Commission, 2021 ONCA 316

[Juriansz, van Rensburg and Sossin JJ.A.]

Counsel:

G. Latner, acting in person

A. Lokan and E. Rathbone, for the respondent

Keywords: Securities, Purchase, “Exempt Market”, Income Threshold, Constitutional Law, Equality Rights, Analogous Grounds, Economic Class, Canadian Charter of Rights and Freedoms, s. 15(1), Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of May 3, 2021.

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Topics covered this week included leave to issue a writ of seizure and sale outside the six year period from the date of the judgment, assault in the context of use of excessive force by police, the interpretation of a commercial lease (term length and obligation to repair roof) and an appeal from a jury award in an MVA case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
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Table of Contents

Civil Decisions

Achtem v. Boese, 2021 ONCA 284

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Seizure and Sale, Rules of Civil Procedure, Rule 60.07(2), Rule 60.08(2), Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master), Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.).

Scala v. Toronto (Police Services Board), 2021 ONCA 297

Keywords: Torts, Assault, Negligence, Breach of Fiduciary Duty, Evidence, Credibility, Civil Procedure, Costs, Criminal Code, section 25(1), Wilsdon v. Durham Regional Police, 2011 ONSC 3419, R. v. Nasogaluak,[2010] 1 S.C.R. 206, R. v. Power, 2016 SKCA 29

Orillia (City) v. Metro Ontario Real Estate Limited, 2021 ONCA 291

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Term, Renewal Options, Repairs, Commercial Reasonableness, Civil Procedure, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chilton v. Co-operators General Insurance Co. (1997), 143 DLR (4th) 647 (Ont CA), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, G.M. Pace Enterprises Inc. v. Tsai, 2003 BCSC 1336, Lurcott v. Wakely, [1911] 1 KB 905 (CA (Eng)), Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd., [1980] QB 12 (QBD (Eng)), Morcom v. Campbell-Johnson, [1955] 3 WLR 497 (CA (Eng)), Brew Brothers Ltd. v. Snax (Ross) Ltd., [1970] 1 Q.B. 612 (C.A. (Eng.)), Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 DLR (4th) 686 (Ont HC), Hall v. Campbellford Cloth Co. Ltd., [1944] 2 DLR 247 (Ont HC), 708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd., 1990 CanLII 1084 (BC Co Ct), Post Office v. Aquarius Properties Ltd., [1987] 1 All ER 1055 (CA), Haskell v. Marlow, [1928] 2 KB 45 (KBD (Eng)), Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (Ont CA), G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), Nicholas Dowding et al., eds., Woodfall: Landlord and Tenant, (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021, release 122), vol. 1.

West v. Knowles , 2021 ONCA 296

Keywords: Torts, Negligence, MVA, Causation, “But For” Test, “Material Contribution” Test, Damages, Past and Future Income Loss, Civil Procedure, Jury Charge, Evidence, Admissibility, Public Documents, Experts, Re-examination, Standard of Proof, Past Events, Hypothetical Events, “Real and Substantial Risk or Possibility of Loss”, Evidence Act, R.S.O. 1990, c. E.23, s.32, Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 209 O.A.C. 127, Ross v. Bacchus, 2015 ONCA 347, Samms v. Moolla, 2019 ONCA 220, Clements v. Clements, 2012 SCC 32, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Athey v. Leonati, [1996] 3 S.C.R. 458, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), R. v. St. Lawrence Cement Inc. (2002), 60 O.R. (3d) 712 (C.A.), R. v. Spence, 2005 SCC 71, R. v. Perkins, 2007 ONCA 585, MacLeod v. Marshall, 2019 ONCA 842, Gao v. Dietrich, 2018 BCCA 372.

Short Civil Decisions

Hornstein v. Kats, 2021 ONCA 293

Keywords: Business Associations, Partnerships, Real Property, Beneficial Interests, Torts, Slander of Title, Evidence, Credibility, Punitive Damages, Independent Actionable Wrong, Land Titles Act, RSO 1990, c L5, s 132, Whiten v Pilot Insurance Co., 2002 SCC 18.


CIVIL DECISIONS

Achtem v. Boese, 2021 ONCA 284

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

D.M. Sinko, for the appellant

M.J. Lambert, for the respondent

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Seizure and Sale, Rules of Civil Procedure, Rule 60.07(2), Rule 60.08(2), Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master), Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.).

facts:

The appellant obtained an order against the respondent from the Supreme Court of British Columbia in 2009. In 2011, the appellant obtained an order from the Ontario Superior Court of Justice registering the order as an Ontario judgment. While partial payment of the judgment was made by the respondent, there remained more than $330,000 outstanding.

In July 2012, the appellant’s lawyer advised him that any further enforcement measures would likely not result in any benefit, due to the limited amount of the respondent’s assets, and the extent of the encumbrances over those assets. Accordingly, the appellant did not issue a writ of seizure of and sale within six years of obtaining the Ontario order. However, in March 2018, the appellant was advised that the British Columbia order would soon be expiring, and he reassessed his options. In October 2018, the respondent was served with a motion record for an order granting leave to issue a writ of seizure and sale, pursuant to Rule 60.07(2) of the Rules of Civil Procedure.

The motion judge dismissed the appellant’s motion for leave to file a writ. In reaching this finding, the motion judge found that the appellant did not provide evidence to explain his delay, had by inference waived his rights, and that it would be inequitable to enforce the judgment due to the respondent’s detrimental reliance on the inferred waiver.

issue:

Did the motion judge err in dismissing the appellant’s motion for leave to file a writ?

holding:

Appeal allowed.

reasoning:

Yes. First, the Court noted that the motion judge did identify the correct test for leave to file a writ, which is the same test for leave to issue a notice of garnishment under Rule 60.08(2). Specifically, the plaintiff must adduce evidence explaining the delay such that the court may conclude that the plaintiff has not waived its rights under the judgment or otherwise acquiesced in non-payment of the judgment (Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master)). The applicable evidentiary threshold is very low, and it is a rare case where a judgment creditor cannot satisfy the requirements of the test (Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.)).

The Court disagreed with the motion judge’s conclusion that waiver of the appellant’s rights could be inferred in this case. The only evidence of “waiver” was the delay itself, which was relatively short. There was no other conduct on the part of the appellant whereby a true waiver or acquiescence of non-payment could be inferred. The parties only ever communicated through counsel, and therefore the respondent could not point to any words or actions on the part of the appellant that would support such an argument.

Further, the appellant provided adequate explanation for this delay, being the belief that enforcement was a futile effort. Again, the Court emphasized the low evidentiary threshold applicable in this analysis. By equating a delay of a mere 13 months from the expiry of the six year period within which a writ could be issued as of right with waiver, the motion judge was in effect imposing a much higher threshold, considering that the outstanding judgment amount was around $330,000.

Last, the Court similarly found that it would not be inequitable to enforce the judgment. Once again, it was unreasonable for the respondent to believe, based solely on the absence of any communication from the appellant, that he had waived his rights to enforce judgment at some point. Again, the fact that a significant sum of money was at stake, and that the parties had never directly communicated with one another, further supported this conclusion. The respondent’s argument that she detrimentally relied on such a belief was similarly dismissed. The suggestion that she would have taken steps, such as declaring bankruptcy, if the appellant indicated he would be proceeding with enforcement were not supported by any evidence.

In light of the above findings, the Court concluded that the motion judge’s dismissal was based on palpable and overriding error that warranted intervention.


Scala v. Toronto (Police Services Board), 2021 ONCA 297

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

J. Shulman, for the appellant

D.O. Smith and S. Sweet, for the respondents

Keywords: Torts, Assault, Negligence, Breach of Fiduciary Duty, Evidence, Credibility, Civil Procedure, Costs, Criminal Code, section 25(1), Wilsdon v. Durham Regional Police, 2011 ONSC 3419, R. v. Nasogaluak, [2010] 1 S.C.R. 206, R. v. Power, 2016 SKCA 29.

facts:

The appellant appealed the trial judge’s decision that denied him damages resulting from an alleged excessive use of force by the respondent police force and the trial judge’s cost award.

In 2010, the appellant was arrested on breach of a recognizance charges and criminal harassment charges. The appellant later sued the police force, alleging among other things, that he was kicked and beaten for two to three minutes during his arrest despite asking the police to stop, that he was never told he was under arrest, he was driven up and down the street in the cruiser with police announcing he was in custody before taking him to the station, he was denied medication at the station and he was denied access to the bathroom and forced to go to the bathroom in his detention cell and then clean up after himself. The police had a different version of the facts.

At trial, the issue was findings of facts and credibility. The law was clear – in order to obtain protection from civil liability, police must establish that the level of force used to arrest was necessary, meaning that it was objectively reasonable in the circumstances presented to the police at the time of the arrest: Wilsdon v. Durham Regional Police, 2011 ONSC 3419. The trial judge ultimately held that the appellant was not credible or reliable and that many of his claims were not supported by the evidence, or directly contradicted by himself at various stages of the litigation. On the other hand, the police testimony was clear, consistent and much more reliable. The trial judge ultimately held the police had used reasonable force in the circumstances and dismissed the claim.

issues:

(1) Did the trial judge err in dismissing the appellants claim for damages for excessive force?

(2) Did the trial judge err in his costs award?

holding:

Appeal dismissed.

reasoning:

(1) No. The Court of Appeal noted the appeal focused entirely on findings of fact made by the trial judge and so the standard of review was palpable and overriding error. The Court of Appeal proceeded to repeat and review several of the trial judge’s key findings and to highlight the inconsistencies in the appellant’s evidence.

The appellant claimed that most of the important aspects of the story as recounted by police should not have been accepted and that the trial judge erred in rejecting most of his evidence as being neither credible nor reliable. The Court rejected this argument because the trial judge carefully evaluated the evidence led at trial, made determinations as to which witnesses he found credible and which witnesses he did not, properly instructed himself as to the applicable law and then applied that law to the facts as found by him. In so doing, he committed no reviewable error. His findings were amply supported by the evidence and there was no basis to overturn those conclusions.

(2) No. The appellant argued that since this was public interest litigation, the quantum of costs ordered against him was unreasonable. He also argued that it was unreasonable to have held his wife jointly and severally liable for costs while also ordering costs against her personally. The Court noted that the trial judge did not hold the appellant’s wife jointly and severally liable and further held that there was no reason to interfere with the trial judge’s cost award or his exercise of discretion.


Orillia (City) v. Metro Ontario Real Estate Limited, 2021 ONCA 291

[Feldman, Simmons and Harvison Young JJ.A.]

Counsel:

R. Wood, for the appellant/respondent by way of cross-appeal

K. Chaytor and C. Steven, for the respondent/appellant by way of cross-appeal

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Term, Renewal Options, Repairs, Commercial Reasonableness, Civil Procedure, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chilton v. Co-operators General Insurance Co. (1997), 143 DLR (4th) 647 (Ont CA), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, G.M. Pace Enterprises Inc. v. Tsai, 2003 BCSC 1336, Lurcott v. Wakely, [1911] 1 KB 905 (CA (Eng)), Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd., [1980] QB 12 (QBD (Eng)), Morcom v. Campbell-Johnson, [1955] 3 WLR 497 (CA (Eng)), Brew Brothers Ltd. v. Snax (Ross) Ltd., [1970] 1 Q.B. 612 (C.A. (Eng.)), Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 DLR (4th) 686 (Ont HC), Hall v. Campbellford Cloth Co. Ltd., [1944] 2 DLR 247 (Ont HC), 708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd., 1990 CanLII 1084 (BC Co Ct), Post Office v. Aquarius Properties Ltd., [1987] 1 All ER 1055 (CA), Haskell v. Marlow, [1928] 2 KB 45 (KBD (Eng)), Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (Ont CA), G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), Nicholas Dowding et al., eds., Woodfall: Landlord and Tenant, (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021, release 122), vol. 1.

facts:

Metro, a grocery store, leased premises from the City of Orillia (“Orillia”). The original lease commenced in 1979 with an initial term of 25 years and an expiry date in 2004. Metro had a right under the lease to five successive renewal periods of five years each. The ultimate expiry date was to be 2029, or a maximum of 50 years from 1979. In 1999, Metro planned an extensive addition to the premises. At that time, the parties negotiated an amendment to the lease which extended the lease term by 10 years to 2014. The amendment gave Metro the option to extend the lease term for three additional five-year periods, for a total of five options or 25 years. Orillia brought an application for a declaration that the maximum term of the lease was 50 years, expiring in 2029. Metro’s position was that the lease extended until 2039.

The roof of the premises began leaking in 2016. The issue on the cross-appeal was which party had the obligation to repair or replace the roof. Orillia took steps to address the leaks, but asserted it had no obligation to repair the roof. Metro brought an application requesting an order requiring Orillia to replace the roof. At the application hearing, Metro argued that its obligations were only to repair but not replace the roof. Orillia’s position was that whether the roof required repair or replacement, it was Metro’s responsibility.

The applications were heard together. Orillia argued that the amendment extending the lease from 2004 to 2014 reflected that two of the five five-year renewal options under the original lease had been exercised. The amendment stated that Metro had the option to further extend the term for three additional five-year terms, which reflected that three of the original five options remained and meant the lease would expire in 2029 at the latest. Metro’s interpretation was that the amending agreement added on an additional 10 years to the maximum potential length of the lease and that five five-year renewal options remained after 2014, which meant the lease would expire in 2039 at the latest. The application judge found that extrinsic evidence, including the notice of lease registered on title and an estoppel certificate, supported Metro’s position. The application judge dismissed Orillia’s application and declared, in favour of Metro, that the lease would expire in 2039 at the latest because the lease term clauses were ambiguous. Orillia appealed.

On the roof issue, the application judge dismissed Metro’s application and determined that Orillia had no duty to replace the roof. Metro’s obligation to maintain and repair the “Leased Premises” under the lease included the roof. The choice of the word “repair” as opposed to “replace” in the lease made no difference to the application judge. Metro cross-appealed on the roof issue.

issues:

(1) Did the application judge commit an extricable error of law when he found an ambiguity in the contractual wording because he failed to interpret the contract as a whole?

(2) Did the application judge err in stating that nothing turned on the fact that Metro’s only obligation under the lease was to repair rather than replace the roof?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

(1) Yes. A contract must be interpreted as a whole. Contractual interpretation is a question of mixed fact and law that requires consideration of both the words of a contract and its factual matrix. An extricable question of law is subject to a correctness standard of review. The Court held that the application judge’s error was in failing to consider the actual wording within the context of the lease as a whole, which led him to find that the provision was ambiguous. This was an extricable legal error. The Court found that when the 1999 amendment was read in the context of the original lease there was no ambiguity.

First, Metro was unable to explain what else the three additional periods, as set out in the amendment, could refer to apart from the interpretation advanced by Orillia. At the time of the amendment, five years remained in the first 25-year term. In extending the expiry of the original lease term from 2004 to 2014, the parties provided there would have been a “further” three options to renew. The phrase “for a total of five” in the amending agreement could only mean that the 10-year extension comprised an early exercise of two of Metro’s options to extend.

Second, the application judge’s interpretation would have rendered the overall term of the lease to be 60 years rather than 50, which was specifically precluded by the original lease. A basket clause in the amending agreement provided that the original lease would be amended where necessary to give effect to the amendments. However, the parties did not amend the 50-year limit provision. Had the parties intended to vary the maximum lease term they could have done so at the time of the amendment, but they did not.

Third, Orillia’s interpretation was supported by the factual matrix at the time of the amendment. Metro was expanding its store significantly. As part of Metro’s financing, Orillia contributed over $600,000 to the project. In return, Metro agreed to pay an additional $4.50/sq ft in rent in the expanded area of the store. There was no doubt that it was in Orillia’s best interest to secure an early extension of the lease term to 2014. It could be inferred that Metro’s expenditures were a business decision and Metro already had the right to remain on the premises for a further 30 years if it chose to exercise the options.

(2) No. Orillia approved, budgeted for, and entered into a contract to repair the roof leaks identified by Metro. Orillia later took the position that those steps were taken in a mistaken belief that it was obligated to repair the roof, but that it had no such obligation. It was in this context that Metro sought an order requiring Orillia to replace the roof. The Court agreed with the application judge’s conclusion that the roof repair was Metro’s obligation and that it was clear Orillia was not obligated to repair the roof.

Orillia’s obligation to make repairs and replacements was subject to Metro’s obligations under the lease. A tenant that covenants to repair the premises is not obligated to fix defects in the premises that go beyond a repair. After reviewing English and Canadian authorities on the topic, the Court set out the following considerations to be used when interpreting a covenant of repair in a lease:

(i) whether the repair gives the landlord back something entirely different than was demised;

(ii) the circumstances surrounding the obligation to repair including the specific wording of the covenant, the terms of the lease, the premises rented, and the condition of the premises at the start of the lease; and

(iii) whether the replacement or renewal is of subsidiary parts of the whole or of the entire thing.

In this case, the lease length was a maximum of 50 years, which was longer than the typical life-span of most roofs. The building was new when the lease commenced. The covenant to repair in the impugned lease imposed a general obligation upon Metro, subject to certain narrow exceptions. Metro did not argue that the roof repairs fell within one of the exceptions, but argued it was a “replacement” not a “repair” and therefore did not fall within the scope of the covenant to repair. The Court rejected Metro’s submissions. It could not be said that the roof overlay would have given Orillia something entirely different or better than what was originally demised or that it replaced substantially the entire premises. As it appeared likely that Metro would receive the bulk of the benefit of the roof overlay, any concerns regarding betterment were moot.


West v. Knowles, 2021 ONCA 296

[Feldman, Paciocco and Coroza JJ.A.]

Counsel:

T.J. McCarthy, for the appellant R.W.

C.A. Richard and K. A. Book, for the respondent J.W.

Keywords: Torts, Negligence, MVA, Causation, “But For” Test, “Material Contribution” Test, Damages, Past and Future Income Loss, Civil Procedure, Jury Charge, Evidence, Admissibility, Public Documents, Experts, Re-examination, Standard of Proof, Past Events, Hypothetical Events, “Real and Substantial Risk or Possibility of Loss”, Evidence Act, R.S.O. 1990, c. E.23, s.32, Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 209 O.A.C. 127, Ross v. Bacchus, 2015 ONCA 347, Samms v. Moolla, 2019 ONCA 220, Clements v. Clements, 2012 SCC 32, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Athey v. Leonati, [1996] 3 S.C.R. 458, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), R. v. St. Lawrence Cement Inc. (2002), 60 O.R. (3d) 712 (C.A.), R. v. Spence, 2005 SCC 71, R. v. Perkins, 2007 ONCA 585, MacLeod v. Marshall, 2019 ONCA 842, Gao v. Dietrich, 2018 BCCA 372.

facts:

This case arose out of a single vehicle accident in 2010, where the respondent was a passenger in the vehicle and sustained injuries. The respondent brought an action against the operator of the vehicle and its owner where he sought compensation for injuries he allegedly suffered in the accident, including a head injury which left him with a permanent serious impairment of certain cognitive functions. The owner of the vehicle was the appellant in this appeal.

At trial, the respondent argued he was entitled to compensation for past and future income loss based on the premise that “but for” the accident he would have completed his post-secondary education and secured employment at an elevated earning capacity. A jury ultimately awarded the respondent over $1 million, inclusive of interest and costs, where much of the award was for past and future income loss.

The appellant sought to set aside the jury award and have a new trial on damages ordered. The appellant submitted that the trial judge misdirected the jury on the test for causation and improperly excluded relevant evidence in relation to two expert opinions. The appellant argued that together, these errors resulted in an excessive damages award that constituted a miscarriage of justice.

issues:

(1) Did the trial judge err in instructing the jury with respect to the causation test they were to apply?

(2) Did the trial judge err by curtailing cross-examination of the respondent’s expert witness and denying the request by appellant’s trial counsel to have the Statistics Canada Report filed as an exhibit?

(3) Did the trial judge err in refusing to allow the appellant’s trial counsel to direct the appellant’s expert witness to specific parts of her expert report during re-examination?

(4) Did the trial judge err in the jury direction of standard of proof for loss of past income?

holding:

Appeal dismissed.

reasoning:

(1) Did the trial judge err in instructing the jury with respect to the causation test they were to apply?

No. The Court held that no reversible error occurred in the jury direction on causation.

The appellant argued that the trial judge erred by directing the jury to apply the “material contribution” test when evaluating causation related to damages for past and future income loss. Instead, the appellant argued that the trial judge should have directed the jury to apply the “but for” test.

When dealing with a challenge to the sufficiency of the jury direction, the question the Court must answer is “whether the jury would have properly understood the law at the end of the charge”. The issue in question was whether the respondent had met his burden of establishing that “but for” the accident he would have finished post-secondary education, thereby elevating his earning power. When instructing the jury, the trial judge made it clear that in order for the respondent to benefit from such a finding of causation when damages were calculated, the jury had to be satisfied that he would have completed his post-secondary education if he had not been injured in the accident.

Regarding past income loss, the trial judge directed the jury that they must assess the amount the respondent might reasonably have earned from the date of the accident to the trial, had the accident not occurred and compare it to his actual earnings to determine whether the respondent suffered a loss of income to date. The trial judge expressly told the jury that this question required them “to predict, to some extent, what would have happened but for the accident”. The trial judge subsequently instructed the jury on how to proceed if they were to conclude that because of the injuries the respondent suffered from the accident, he did not complete his post-secondary education. Regarding future income loss, the trial judge directed the jury that they must assess “the difference, if any, between [the respondent’s] potential earning capacity if he had not suffered the injury and his actual earnings capacity”

Based on this, the Court found that each of these directions required the jury to find the “but for” test to be satisfied. Therefore, the Court held that even if the trial judge was wrong to use “material contribution” language, the jury would have properly understood that they were to apply a “but for” analysis in assessing causation for the respondent’s past and future income loss.

Further, the Court did not accept the appellant’s submission that her trial counsel objected to the trial judge’s “material contribution” instruction. Rather, the Court found that the appellant’s trial counsel raised concerns only about comments the trial judge had made in his draft charge relating to the applicable onus of proof. Therefore, the Court stated that this was a case where the appellant challenged a jury charge in the absence of an objection at trial, which in turn, further supported its conclusion that no reversible error occurred.

 

(2) Did the trial judge err by curtailing cross-examination of the respondent’s expert witness and denying the request by appellant’s trial counsel to have the Statistics Canada Report filed as an exhibit?

No. The Court held that the trial judge did not unfairly curtail the cross-examination the respondent’s expert witness, nor did the trial judge err by denying the appellant’s request to admit the Report into evidence as an exhibit.

At trial, the respondent called an accountant to give expert evidence relating to the respondent’s economic loss. During cross-examination of the respondent’s expert witness, appellant’s trial counsel produced a report published by Statistics Canada (the “Report”) containing data and conclusions linking post-secondary educational attainment to income levels. After asking the respondent’s expert witness a series of questions about the Report, appellant’s trial counsel asked the trial judge to have it filed as an exhibit. The trial judge declined to do so, noting that the Report had “not been proven” and that “the witness [had] not relied upon [the Report]”. The appellant argued that the trial judge erred by “unfairly” limiting the cross-examination on an “authoritative and public report”, and by not making the Report an exhibit, which she argued was admissible under s. 32 of the Ontario Evidence Act, R.S.O. 1990, c. E.23. The Court did not accept the appellant’s submissions for the following reasons.

First, the Court found that the trial judge did nothing to curtail the cross-examination. The trial judge permitted the questions the appellant’s trial counsel attempted to ask using the Report and the cross-examination only ended only when appellant’s counsel indicated that he had finished his questions.

Second, the Court found that the Report was not admissible in the circumstances and that the trial judge was correct in excluding the Report on the basis that the witness had not relied on it. The law permits expert witnesses to be cross-examined using a published document, but the document itself does not become evidence unless the expert effectively incorporates it into their evidence by recognizing it as authoritative (R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.)). The Court found that the respondent’s expert witness had never seen the Report prior to trial and that she did not rely on the Report at trial. Although she had expressed agreement with specific propositions put to her from the Report, at no time did she affirm the general accuracy of the Report or recognize the Report itself to be authoritative. Therefore, the appellant did not establish a proper basis for the admission of the Report.

Regarding s. 32 of the Evidence Act, the Court stated that this provision was not cited before the trial judge and even if it was now open to the appellant to rely on s. 32 on appeal, the provision did not support the admission of the Report. The Court held that assuming the Report was a public document within the meaning of s. 32, it would only be admissible under s. 32(1) if it was produced “from the proper custody” and the appellant led no such evidence.

 

(3) Did the trial judge err in refusing to allow the appellant’s trial counsel to direct the appellant’s expert witness to specific parts of her expert report during re-examination?

No. The Court held that the trial judge did not err in his decision and that the appellant had failed to establish that this ruling caused a miscarriage of justice.

At trial, the appellant had called a neurologist as an expert witness. The issue occurred regarding testimony that the appellant’s expert witness gave in cross-examination about the length of time the respondent had been unconscious as a result of the accident. During her re-examination, the respondent’s trial counsel objected to the attempt by the appellant’s trial counsel to direct her to a specific page of her report. The trial judge held that the appellant’s trial counsel was permitted to ask her to look in her report, but he could not direct her to a specific page.

The Court stated that the trial judge was entitled to permit the appellant’s expert witness to consult her report to refresh her memory and that the trial judge had invited appellant’s trial counsel to have her review her report for this purpose. Therefore, the Court found no error in what transpired. Further, the Court found that on its own examination of the page of the report to which appellant’s trial counsel attempted to direct her, there was nothing that would have supported the belief of the appellant’s expert witness that the respondent was unconscious for only a few minutes or less. The Court also found that the appellant had not produced any other evidence to support this contention.

 

(4) Did the trial judge err in the jury direction of standard of proof for loss of past income?

No. On appeal, the appellant advanced the additional argument that the jury charge contained an error in the description of the respondent’s onus of proof to establish past income loss. The appellant argued that past income loss is a past event, rather than a hypothetical event. Therefore, the trial judge erred by instructing the jury that the respondent was entitled to compensation for past income loss if he established “a real and substantial risk or possibility of loss of past income”. Instead, the appellant argued that the jury should have been told that the onus on the respondent to establish past income loss was on a balance of probabilities.

The Court did not accept the appellant’s conception of the law and noted that the same argument had previously been rejected in MacLeod v. Marshall, 2019 ONCA 842. Instead, the Court stated the relevant general rule from Gao v. Dietrich, 2018 BCCA 372 is as follows: With respect to past facts, the standard of proof is the balance of probabilities. With respect to hypothetical events, both past and future, the standard of proof is a “real and substantial possibility”.

The Court stated that the income the respondent would have earned between the accident and trial, but for his injury, was hypothetical. Therefore, the trial judge was correct to instruct the jury to use the “real and substantial risk or possibility” standard of proof.


SHORT CIVIL DECISIONS

Hornstein v. Kats, 2021 ONCA 293

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

S.R. Dyment, for the appellant

M.A. Ross and S.A. Sam, for the respondent, A.K.

R.H. in person

Keywords: Business Associations, Partnerships, Real Property, Beneficial Interests, Torts, Slander of Title, Evidence, Credibility, Punitive Damages, Independent Actionable Wrong, Land Titles Act, RSO 1990, c L5, s 132, Whiten v Pilot Insurance Co., 2002 SCC 18.


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 26, 2021.

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In Parliament v. Conley, the Court ordered a new trial in a MedMal case tried before a jury because the doctors’ expert crossed the line by commenting on matters of the credibility of the parties. Even though the plaintiff did not object at the expert’s testimony at trial, the Court was of the view that the trial judge should have excluded it and provided special instructions to the jury to disregard the expert’s oath helping evidence. The failure to do so resulted in a miscarriage of justice necessitating a new trial.

In Dowdall v. Dowdall, the Court upheld the motion judge’s decision refusing to enforce an accepted offer to settle. The appellant accepted the respondent’s offer after he had accepted a new job offer that substantially increased his income. He did not disclose the new income before accepting the offer to settle. The Court held that the offer to settle had been predicated on a different income level of the appellant, and he could not take advantage of his non-disclosure to accept the offer.

In Dia v. Calypso Theme Waterpark, the Court set aside the motion judge’s summary judgment dismissing an assault claim against the respondent. The motion was granted even though the respondent had not filed an affidavit denying any involvement in the assault. The Court was of the view that the motion judge ought to have drawn an adverse inference from the respondent’s failure to submit to cross-examination. Moreover, parts of the police file were put into evidence through a legal assistant’s affidavit, which was not admissible.

Other topics covered this week included contractual misrepresentation, prescriptive easements, an order of no costs to a successful party in a slip and fall matter that involved a novel elder care issue, summary judgment, stay pending appeal of a decision staying an action on the basis of forum non conveniens and wrongful dismissal.

Our Top Appeals of 2020 CLE took place on April 27, 2021. We had over 70 registrants and eleven panelists, and very good feedback from our attendees. Thank you to Justice Zarnett, all of our panelists and our registrants for another successful CLE. The program qualified for 30 minutes of professionalism CPD credit and 2.75 hours of substantive content credit. If anyone would like to register for the program on demand, please visit the OBA’s website.

Wishing everyone celebrating a Happy Greek/Eastern Orthodox Easter.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Parliament v. Conley, 2021 ONCA 261

Keywords: Torts, Negligence, MedMal, Standard of Care, Civil Procedure, Jury Trials, Jury Instructions, Evidence, Credibility, Expert Evidence, Admissibility, Appeals, New Issues on Appeal, Failure to Object at Trial, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Mohan, [1994] 2 S.C.R. 9, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Abbey, 2009 ONCA 624, leave to appeal refused, [2010] S.C.C.A. No. 125, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Sekhon, 2014 SCC 15, R. v. White, 2011 SCC 13, R. v. Bingley, 2017 SCC 12, Marshall v. Watson Wyatt & Co. (2002), 209 D.L.R. (4th) 411 (Ont. C.A.), Harris v. Leikin Group Inc., 2014 ONCA 479, Maurice v. Alles, 2016 ONCA 287, Arland and Arland v. Taylor, [1955] 3 D.L.R. 358 (Ont. C.A.), G.K. v. D.K., 1999 CanLII 935 (Ont. C.A.), Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board, 2004 CanLII 874 (Ont. C.A.), Hoang v. Vicentini, 2016 ONCA 723

Wen v. Gu, 2021 ONCA 259

Keywords: Contracts, Breach, Misrepresentation, Frustration, Civil Procedure, Admissions, Rules of Civil Procedure, Rule 51.03, Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592

Dowdall v. Dowdall, 2021 ONCA 260

Keywords: Family Law, Spousal Support, Material Change in Circumstances, Civil Procedure, Disclosure, Settlements, Enforcement,Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Deference, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Family Law Rules, Rules 13(15), 18(13)(a) and 18(5), Milos v. Zagas (1998), 38 O.R. (3d) 218 (C.A.), Magnotta v. Yu, 2021 ONCA 185, Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497, Ballanger v. Ballanger, 2020 ONCA 626, Rick v. Brandsema, 2009 SCC 10

Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266

Keywords: Real Property, Rights of Way, Easements, Prescriptive Easements, Road Access Act, R.S.O. 1990, s.1, c. R.34, Highway Traffic Act, R.S.O. 1990, c. H.8, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff’d 2018 ONCA 521, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al., [1968] 2 O.R. 293 (C.A.), Carlini v. Hammoud, 2011 ONCA 285, 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, Blais v. Belanger, 2007 ONCA 310

Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267

Keywords: Torts, Occupier’s Liability, Negligence, Slip and Fall, Elder Law, Civil Procedure, Costs, Novelty of Claim, Standard of Review, Deference, Rules of Civil Procedure, Rule 57.01, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Bell Canada v. Olympia & York Developments Ltd., 1994 ONCA 239, Childs v. Desormeaux (2004), 239 D.L.R. (4th) 61 (Ont. C.A.)

UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

Keywords: Contracts, Debtor-Creditor, Commercial Lending, Security, Receivables, Guarantees, Enforcement, Unjust Enrichment, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Stay Pending Appeal, Expedited Appeals, Jurisdiction, Forum Non Conveniens, Forum Selection Clauses, Attornment, Anti-Suit Injunctions, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March 1, 2017), ss. 12.1(4), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (CA), Heidari v. Naghshbandi, 2020 ONCA 757, Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Patterson v. EM Technologies, Inc, 2013 ONSC 5849, Wilson c. Fernand Campeau & Fils Inc., 2020 ONCA 384, Osman v. Markplan Inc., 2018 ABCA 215, Douez v. Facebook, Inc., 2017 SCC 33, ECS Educational Consulting Services Canada Ltd. v. Al Nahyan (2000), 44 C.P.C. (4th) 111, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, Lilydale Cooperative Ltd. v. Meyn Canada Inc., 2019 ONCA 761, Fraser v. 4358376 Canada Inc., 2014 ONCA 553, T Films S.A. v. Cinemavault Releasing International Inc., 2014 ONSC 4138, 1092072 Ontario Inc. (Elfe Juvenile Products) v. GCan Insurance Co., 2008 CanLII 51922 (Ont. S.C.)

Dia v. Calypso Theme Waterpark, 2021 ONCA 273

Keywords: Torts, Assault, Civil Procedure, Summary Judgment, Evidence, Adverse Inferences, Admissibility, Affidavits, Information and Belief, Hearsay, Crown Brief, Rules of Civil Procedure, Rules 39.01(4), 39.04(2), 20.02(1), and 20.04(2.2), Hryniak v. Mauldin, 2014 SCC 7, Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 50 O.R. (3d) 97 (C.A.), 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Nagpal v. IBM Canada Ltd., 2021 ONCA 274

Keywords: Contracts, Employment, Wrongful Dismissal, Short-Term Disability, Resignation, Abandonment, Frustration, Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Standard of Review, Question of Mixed Fact and Law, Palpable and Overriding Error, Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.), Betts v. IBM Canada Ltd., 2015 ONSC 5298, aff’d 2016 ONSC 2496 (Div. Ct.), Pereira v. The Business Depot Ltd., 2009 BCSC 1178, rev’d on other grounds, 2011 BCCA 361, Duong v. Linmar Corp, 2010 ONSC 3159, aff’d 2011 ONCA 38, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Antonacci v. Great Atlantic & Pacific Company of Canada Ltd. (1998), 35 C.C.E.L. (2d) 1 (Ont. C.J.), aff’d 128 O.A.C. 236 (C.A.), Ciszkowski v. Canac Kitchens, 2015 ONSC 73, Hryniak v. Mauldin, 2014 SCC 7, Leeming v. IBM Canada Ltd., 2015 ONSC 1447, Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.), Cheong v. Grand Pacific Travel & Trade (Canada) Corp., 2016 BCSC 1321

Short Civil Decisions

Segura Mosquera v. Ottawa Public Library, 2021 ONCA 275

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, Rule 37.17, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.)

Toronto (City) v. Queen-St. Patrick Market Inc., 2021 ONCA 276

Keywords: Contracts, Real Property, Commercial Leases, Relief from Forfeiture, Standard of Review

Bogue v. Miracle, 2021 ONCA 278

Keywords: Contracts, Solicitor-Client, Contingency Fee Agreements, Enforcement, Receiverships, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Indian Act, R.S.C. 1985, c. 1-5, ss. 29, 89, Borden & Elliot v. Temagami First Nation, [2009] 3 C.N.L.R. 30 (Ont. S.C.), Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96

CIVIL DECISIONS

Parliament v. Conley, 2021 ONCA 261

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

G. MacKenzie, B. MacKenzie, H.Y. Elmaleh and M.A. Hershkop, for the appellants

D. Cruz, D. Charach and J. Ur, for the respondents

Keywords: Torts, Negligence, MedMal, Standard of Care, Civil Procedure, Jury Trials, Jury Instructions, Evidence, Credibility, Expert Evidence, Admissibility, Appeals, New Issues on Appeal, Failure to Object at Trial, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Mohan, [1994] 2 S.C.R. 9, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Abbey, 2009 ONCA 624, leave to appeal refused, [2010] S.C.C.A. No. 125, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, leave to appeal refused, [2017] S.C.C.A. No. 343, R. v. Sekhon, 2014 SCC 15, R. v. White, 2011 SCC 13, R. v. Bingley, 2017 SCC 12, Marshall v. Watson Wyatt & Co. (2002), 209 D.L.R. (4th) 411 (Ont. C.A.), Harris v. Leikin Group Inc., 2014 ONCA 479, Maurice v. Alles, 2016 ONCA 287, Arland and Arland v. Taylor, [1955] 3 D.L.R. 358 (Ont. C.A.), G.K. v. D.K., 1999 CanLII 935 (Ont. C.A.), Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board, 2004 CanLII 874 (Ont. C.A.), Hoang v. Vicentini, 2016 ONCA 723

facts:

This appeal involved a medical practice suit. The plaintiff, CP, was diagnosed with severe hydrocephalus when he was four months old and subsequently developed cognitive and physical disabilities. CP was born in August and labour was induced over concerns of his size and he had to be resuscitated at birth. One of the respondent’s was the long-time family doctor of the plaintiffs and saw CP three weeks after he was born and noted that CP’s head circumference was in the 25th percentile and his weight was in the 3rd percentile. On a subsequent visit some six weeks later, head circumference and weight had alarmingly jumped to 90th percentile and 50th percentile respectively. About one month later, CP was taken to a walk-in clinic where he was seen by the second respondent because of a cough. The walk-in doctor made notes regarding CP’s head size and allegedly said CP needed to be taken to an emergency room because of it. One month later, a family friend who was a pediatric nurse commented on CP’s head size and said the doctor she worked for would see CP. CP was diagnosed the severe hydrocephalus and had brain surgery.

CP’s parents sued the two doctors for negligence, claiming that they delayed the diagnoses of CP’s condition, which caused his brain damage. One of the critical aspects at trial, which forms the basis of this appeal was credibility. The respondent doctors claim they made notes of the head size and recommended various follow-up appointments which CP’s parents ignored. The parents claim while they raised concerns over the head size, they were consistently assured there was nothing to be concerned about. At the trial, four experts testified on the issue of the standard of care, three for the plaintiffs and only one for the defendants. The jury ultimately held that both doctors met the standard of care and so the action was dismissed.

The appellants sought a new trial on the basis that the respondent’s expert’s evidence went beyond the scope of his expertise, failed to demonstrate impartiality and usurped the jury’s role of assessing credibility which was critical to the outcome of this case. The appellants highlighted several of his answers he gave during cross-examination. In cross-examination, the respondent’s expert agreed that he ignored CP’s mother’s evidence when he wrote his report, because he did not think it was relevant. He also expressed his opinion that he did not think her memory was accurate, that he had put more weight on the family doctor’s evidence because he had some notes, and that it was inconceivable that the walk-in doctor had not told her to take CP to the emergency room.

The appellants did not object to this testimony at trial, but raised the argument on appeal.

issues:

(1) Did the trial judge err by failing to exclude the expert’s evidence or by failing to provide a specific instruction to the jury?

(2) Is the appellant’s failure to raise the issue at trial fatal to their appeal?

holding:

Appeal allowed.

reasoning:

(1) Did the trial judge err by failing to exclude the expert’s evidence or by failing to provide a specific instruction to the jury?

Yes, the trial judge erred by failing to exclude the expert’s evidence and by failing to provide a specific instruction to the jury.

The appellants submitted that the expert evidence of the respondent should have been excluded in whole or in part because the expert failed to fulfil his duty to be impartial and independent, and that the trial judge erred in failing to so instruct the jury in her charge. The respondents in turn argued that the appellant’s counsel had warned the jury of the alleged issues in their closing address and that the trial judge had given sufficient warnings about the need to assess expert evidence and for the jury to make their own decision.

The Court of Appeal reproduced several germane sections of the expert’s report and cross-examination before moving on to consider the role that expert evidence and trial judges play in civil jury trials and the principles that informed the appeal.

Role of Expert Witnesses and Guiding Principles

Expert evidence carries with it the risk that a jury “will inappropriately defer to the expert’s opinion rather than carefully evaluate it”: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The test for admissibility of expert evidence consists of two steps. First, the proponent of expert evidence must establish that four conditions are met in order to establish its admissibility: relevance; necessity in assisting the trier of fact; absence of an exclusionary rule; and a properly qualified expert. The second stage of the inquiry requires the trial judge to conduct a cost-benefit analysis to determine whether otherwise admissible expert evidence should nevertheless be excluded because its probative value is outweighed by its prejudicial effect. However, the ultimate conclusion as to credibility or truthfulness is for the trier of fact, in this case the jury, and not for experts. The rationale for this policy is that credibility is a notoriously difficult problem, and a frustrated jury may readily accept an expert’s opinion as a convenient basis upon which to resolve its difficulties: see R. v. Marquard, [1993] 4 S.C.R. 223. One of the central dangers of expert evidence is that finders of fact, and juries in particular, may be too ready to rely on experts who appear to be knowledgeable, credible and reliable.

The trial judge’s role does not end once this test is met. The trial judge must protect the integrity of the process by ensuring that the expert does not overstep the acceptable boundaries in giving evidence. The continuing gatekeeping role means that trial judges must not only continue to ensure that the expert’s actual testimony does not overstep the appropriate scope of the expert evidence; they must also ensure that the expert’s testimony continues to be independent in the sense that the expert does not become an advocate for the party by whom they are called.

Application of Principles

The Court of Appeal accepted the argument of the appellant’s that the expert opined on the credibility of the parties in oral testimony, something that should have been left to the jury to do. He exceeded his role as an expert when he opined on the credibility and reliability of the doctors and CP’s mother, for example observing that she was untruthful and could not remember accurately. There was a risk that the members of the jury would accept the expert’s credibility and reliability assessments, rather than assess the evidence of the witnesses and reach their own conclusions.

Second, the expression of an opinion as to the credibility of witnesses is also a breach of the expert’s duty to be independent. It was clear that in some critical instances he was giving evidence about what actually happened, based on his view of the credibility of the witnesses. His testimony extended well beyond expressing opinions based on hypothetical facts he was asked to assume. For these reasons, his evidence was not admissible and to the extent his testimony opined on the credibility of the witnesses, it should have been excluded. These circumstances called for the trial judge to exercise her gatekeeping role and her residual discretion to exclude this evidence.

The Court of Appeal expressly rejected the respondent’s arguments relating to the closing address of the appellant’s counsel and the trial judge’s instructions to the jury. The jury is to take their instructions from the judge, and so the remarks by the appellant’s counsel in closing could not have informed the jury’s understanding of the law. With respect to the trial judge’s charge, the trial judge only made general cautions as to credibility in the “boilerplate” portion of the charge. The trial judge went on to give instructions on the burden of proof, an overview of the facts, and instructions on the legal principles for the standard of care before reviewing the lay witness and expert evidence on standard of care and recapping the instructions on weighing expert opinion. There was no specific caution relating to the respondent expert’s testimony and the need to disregard it – this amounted to an error.

The Court of Appeal noted that the trial judge should have done one of two things, if not both. The first option was to give a mid-trial instruction to the jury to disregard any and ell expressions by the expert as to credibility and reliability. The second option would have been to include a very clear and specific instruction on that point in the final charge to the jury. The failure to so instruct the jury was a serious error on the part of the trial judge, despite the fact that the appellants’ counsel did not ask for either a mid-trial or a closing instruction.

(2) Is the appellant’s failure to raise the issue at trial fatal to their appeal?

No, the appellant’s failure to raise these arguments at trial is not fatal to their appeal.

The respondent’s expert evidence was admitted at the outset of the trial, on consent of the appellants. The appellants did not object during examination in chief, nor did they object to the charge given by the trial judge and the absence of a specific instruction. The appellants objected to another expert’s evidence who was not allowed to testify as a result, and so it was evidently a conscious choice not to object to the expert who was the subject of this appeal. The respondents argued that this failure to argue the issue at trial precluded them from raising the issue on appeal.

The general principle is that a party in a civil case should not bring an appeal on the basis of some aspect of the lower court proceeding to which it did not object: see Marshall v. Watson Wyatt & Co. (2002), 209 D.L.R. (4th) 411 (Ont. C.A.). An appellant cannot ask for a new trial as of right due to an error during the trial when no objection was made on the point at trial. The failure to object at trial shows that it was not important or of sufficient consequence to trial counsel and this weighs heavily on appeal. The exception to this is where the appellate court is satisfied that a new trial is necessary in the interests of justice – the question should focus on whether a substantial wrong or miscarriage of justice has occurred.

The Court of Appeal, turning to the facts of the appeal, noted that it was impossible to know the extent to which the impugned evidence impacted the jury. However, that did not address whether there has been a miscarriage of justice. The Court held that given the centrality of credibility to the case and the absence of a caution about the expert’s evidence, there was a “very real possibility that [his] evidence on credibility and reliability played a significant role in the jury’s decisions…” The Court has a responsibility to protect the integrity of the justice system. The impugned evidence tainted the jury’s verdict and the verdict had to be set aside because of a miscarriage of justice.


Wen v. Gu, 2021 ONCA 259

[Benotto, Miller and Trotter JJ.A.]

Counsel:

Y. Wang and J.G. Hodder, for the appellant

J.H. Stanleigh, for the respondent

Keywords: Contracts, Breach, Misrepresentation, Frustration, Civil Procedure, Admissions, Rules of Civil Procedure, Rule 51.03, Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592

facts:

The appellant purchased a restaurant from the respondent. The appellant alleged that the respondent made misrepresentations regarding sales revenues, which entitled her to terminate the agreement. The appellant commenced an action alleging fraudulent misrepresentation and frustration. The respondent counterclaimed for breach of contract.

The trial judge held that the appellant breached the contract. He found that the respondent did not make any misrepresentations which induced the appellant into signing the contract, and that the respondent’s statements about revenue and profits were accurate. Further, the trial judge stated that even if the estimate of revenue was inaccurate, the respondent had provided the actual sales receipts to the appellant. Therefore, it was not reasonable for the appellant to have relied on the respondent’s totals when the actual sales records were given to her.

issues:

(1) Did the trial judge err by ignoring the factual admissions when he found there were no misrepresentations?

(2) Did the trial judge err in assigning responsibility to the appellant for not verifying the receipts given to her?

holding:

Appeal allowed.

reasoning:

(1) Did the trial judge err by ignoring the factual admissions when he found there were no misrepresentations?

Yes. The estimates given by the respondent could not be reconciled with the actual sales. These facts had been admitted pursuant to responses to the appellant’s Request to Admit and the testimony of the respondent. The trial judge failed to consider the effect of these admissions, and failed to refer to the admitted facts when he concluded there was no misrepresentation.

(2) Did the trial judge err in assigning responsibility to the appellant for not verifying the receipts given to her?

Yes. The trial judge erred by assigning responsibility to the appellant. He should not have relied upon the appellant’s lack of due diligence to find that there was no fraudulent misrepresentation. A new trial was ordered.


Dowdall v. Dowdall, 2021 ONCA 260

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

A. Franks and G. Pop-Lazic, for the appellant

M.J. Ruhl and A. Timm, for the respondent

Keywords: Family Law, Spousal Support, Material Change in Circumstances, Civil Procedure, Disclosure, Settlements, Enforcement,Appeals, Jurisdiction, Final or Interlocutory, Standard of Review, Deference, Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Family Law Rules, Rules 13(15), 18(13)(a) and 18(5), Milos v. Zagas (1998), 38 O.R. (3d) 218 (C.A.), Magnotta v. Yu, 2021 ONCA 185, Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc., 2007 ONCA 497, Ballanger v. Ballanger, 2020 ONCA 626, Rick v. Brandsema, 2009 SCC 10

facts:

When the parties separated, they entered a consent order for property division, child support and interim spousal support pending a trial in October 2019. Prior to the trial, the respondent submitted a settlement offer to the appellant fixing spousal support. The October trial did not go ahead and was rescheduled for March 2020. In between October 2019 and March 2020, the appellant changed jobs, which came with a moderate raise, which he disclosed to the respondent. When COVID hit, the March 2020 trial did not proceed either. The appellant also had his pay cut at work by 25% and was told he likely did not have a future at this job. In response to this, he sent a counter-settlement offer to the respondent with a lower support figure, but failed to disclose that he had been offered a new job that was higher paying than his original job before the pay cut.

The next day, the appellant accepted a revised offer of the new job with a salary that was 40% higher than his original job and included a 30% discretionary bonus. The appellant than proceeded to accept the respondent’s initial settlement offer without disclosing his change in circumstances.

The appellant moved to enforce his acceptance of the settlement offer and the motion judge refused to do so because of his intentional non-disclosure. The motion judge found that “[t]he only credible implication” of the appellant’s conduct was that, at the time he accepted the October 2019 offer, “he knew he would be accepting a job that would pay him $280,000 per year.” He noted that the appellant had an obligation to provide the respondent with updated financial information under Rule 13(15) of the Family Law Rules “as soon as he discovered” his last sworn financial statement setting out his income was inaccurate, since the difference in support obligations was material.

issues:

Did the motion judge err in failing to enforce the appellant’s acceptance of the October 2019 settlement offer?

holding:

Appeal dismissed.

reasoning:

Did the motion judge err in failing to enforce the appellant’s acceptance of the October 2019 settlement offer?

No. Conversion of an offer to settle into a court order is a discretionary remedy: see Milos v. Zagas (1998), 38 O.R. (3d) 218 (C.A.). A decision refusing to enforce a settlement is a final decision and so the Court of Appeal is the proper venue for the appeal. However, as a discretionary remedy, the decision of the motion judge is entitled to deference. Where the relevant factors disclosed by the evidence are considered, “an appellate court will not generally interfere with the motion judge’s decision to grant, or not grant, judgment in accordance with an accepted offer.”

Rule 13 of the Family Law Rules provides for extensive financial disclosure, and an ongoing duty to correct or update documents. Rule 13(15) provides that “as soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.”

In this case, the motion judge clearly articulated his reasons and why he exercised his discretion not to enforce the settlement – material non-disclosure by the appellant. The Court of Appeal saw no reason to interfere with this decision as the record amply supported that the appellant intentionally did not disclose his new job and accepted the settlement offer on the eve of starting his lucrative new position.

The appellant argued that since the settlement offer was non-variable, the non-disclosure did not matter. The Court rejected this argument. Rule 18(5) gives a person the right to withdraw an offer at any time prior to acceptance because of a change in financial circumstances. While the respondent was willing to take the risk of a change in financial circumstances after the settlement was agreed to, she was entitled to rely on the appellant’s disclosure in making the offer.

The motion judge also found that enforcing the settlement would have been unfair and unreasonable. The appellant sought to challenge this finding by leading fresh evidence as to the respondent’s income. However, the respondent’s income was within the range the motion judge estimated it to be and so the fresh evidence would not have altered the conclusion.

The appellant finally argued that setting aside the settlement would promote litigation and encourage litigants to refuse to be bound by their accepted offers. However, the Court rejected this. Disclosure is a cornerstone of family law, and allowing someone to intentionally fail to disclose material information and accept a stale settlement offer would undermine public confidence. Where both parties have access to the relevant and material information and full disclosure is provided, as required by the Rules, litigation will be minimized.


Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266

[Feldman, Harvison Young and Thorburn JJ.A.]

Counsel:

J.G. Saikaley and J. Plotkin, for the appellants

R.A. Leck, for the respondents

Keywords: Real Property, Rights of Way, Easements, Prescriptive Easements, Road Access Act, R.S.O. 1990, s.1, c. R.34, Highway Traffic Act, R.S.O. 1990, c. H.8, Carpenter v. Doull-MacDonald, 2017 ONSC 7560, aff’d 2018 ONCA 521, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al., [1968] 2 O.R. 293 (C.A.), Carlini v. Hammoud, 2011 ONCA 285, 2008795 Ontario Inc. v. Kilpatrick, 2007 ONCA 586, Blais v. Belanger, 2007 ONCA 310

facts:

The appellants purchased a piece of land, referred to as “the triangle property,” adjacent to the respondents’ property. The appellants’ land had some water access, but no vehicle access, unless the appellants were entitled to use what was acknowledged at one time to be a private road, referred to as the “red track”, across the respondents’ property. The appellants claimed the right to use the red track on two bases: either because it was an easement that had been acquired under the doctrine of lost modern grant before 1999, when the respondents’ lands were transferred into the Land Titles system, or because it was an access road under the Road Access Act (the “Act”). The trial judge rejected both bases and found that the appellants had no right to use the red track.

issues:

(1) Did the appellants’ predecessors in title acquire an easement by prescription over the red track prior to 1999?

(2) Is the red track an access road under the Road Access Act?

holding:

Appeal dismissed.

reasoning:

(1) Did the appellants’ predecessors in title acquire an easement by prescription over the red track prior to 1999?

Under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be “as of right” meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land. The trial judge found that the appellants had not established an easement based on 20 years of continuous use of the red track. The appellants argued that the trial judge erred in two respects. The first was that the trial judge erred in finding that when the respondents’ predecessors in title asked the appellants to check on the triangle property over the years by crossing the red track, they did not do so as agents. The trial judge found that if the appellants were not acting as agents, then their use of the red track did not count as part of the 20 years of possession by the predecessors in title of the respondents.

The issue turned on the application of two decisions of the Court of Appeal on the agency issue, Temma Realty Co. Ltd. v. Ress Enterprises Ltd. et al., and Carlini v. Hammoud. In Temma, the issue was whether a right of way by easement had been established over a laneway that was used by independent delivery vehicles to access the appellant’s land. The court held that even if the nature of that use would otherwise have met the test to establish an easement, the fact that the truckers were independent of the owner of the dominant tenement meant that they were not under the direction and control of the owner, and their use was not as agent. In Carlini, the appellant’s property had a driveway that had been used by the respondent family. The home of the respondents’ parents was on the lot that originally included the driveway. They later severed the lot and sold the portion with the driveway to their son. The Carlini family continued to use the driveway until the son sold the servient tenement to strangers. The court held that an easement over the driveway had been established well before the sale by the collective use of the driveway by the Carlini family members, not strangers, “for a host of purposes associated with the better enjoyment of the dominant tenement”. The court specifically distinguished Temma on that basis.

The appellants argued that the trial judge erred by rejecting the applicability of the Carlini case. The Court disagreed. The trial judge analyzed the nature of the relationship between the respondents’ predecessor in title and the appellants. She found that the arrangement was that the respondents’ predecessor in title allowed the appellants to use the triangle property, and in exchange, the appellants would keep an eye on it. There were no specific dates or checks and no reporting back to them. Furthermore, the original owners never told the appellants to drive to the triangle property or to use the red track to get there. The trial judge’s conclusion was a finding of mixed fact and law. It was open to her on this evidence, and there was no basis to interfere with it. The trial judge further found that there was no evidence that the respondents’ predecessors knew or ought to have known that the red track was being used to access the triangle property, another essential component of the easement test. Thus, the trial judge found that the evidence was not sufficient to establish a prescriptive easement.

The appellants’ second alleged error in the trial judge’s finding was that her credibility findings were based on alleged misapprehensions of the evidence. A misapprehension of evidence on a key issue can give rise to a palpable and overriding error. However, the Court held that was not the case here and it is not the role of the appellate court to retry factual issues and conclusions reached by the trial judge, especially findings of credibility.

(2) Is the red track an access road under the Road Access Act?

Under the Act, landowners cannot close off an access road except with a court order. The trial judge found that because the definition of access road uses the word “serves”, in the present tense, an access road must be one that exists contemporarily and that a former access road can lose its status by disuse or overgrowth. The trial judge considered two points in time to assess the status of the red track: 2008, when the respondents built a fence across the red track; and 2014, when the appellants purchased the triangle property and took down the fence. She found that the red track was not an access road at either point because it was not in use due to a fence blocking the road or overgrowth.

The trial judge concluded that although the red track may have been an access road at one time, it no longer was by 2005 when the respondents purchased the lot, or in 2008 when the respondents erected the fence. The appellants submitted that the trial judge erred by failing to recognize that the red track was traversable by an all-terrain vehicle, which qualified as a motor vehicle. The Court had already held in previous case law that in order to be an access road, a road must exist contemporarily, i.e., it must serve as “a motor vehicle access road to one or more parcels of land” at the relevant point in time. In this case, the trial judge found that at the relevant points in time the red track was not in use. Because it was overgrown, it was also not, at those points in time, intended for use for the passage of motor vehicles. The Court saw no error in the trial judge’s approach to the law or to her findings of fact and mixed fact and law.


Przyk v. Hamilton Retirement Group Ltd. (The Court at Rushdale), 2021 ONCA 267

[Tulloch, Zarnett and Sossin JJ.A.]

Counsel:

T.J. McCarthy and D. Ong, for the appellant

J. Cranney, for the respondent

Keywords: Torts, Occupier’s Liability, Negligence, Slip and Fall, Elder Law, Civil Procedure, Costs, Novelty of Claim, Standard of Review, Deference, Rules of Civil Procedure, Rule 57.01, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Bell Canada v. Olympia & York Developments Ltd., 1994 ONCA 239, Childs v. Desormeaux (2004), 239 D.L.R. (4th) 61 (Ont. C.A.)

facts:

The respondent slipped and fell on the property of the retirement home where she resided, and sued the appellant, the owner of the retirement home. The appellant was successful at trial, but was denied partial indemnity costs by the trial judge.
The trial judge cited three reasons in denying costs to the appellant. First, the fact that the appellant was defended by an insurer amounted to a “David and Goliath” situation. Second, the fact that the insurer never offered a settlement to the respondent was indicative of “hardball” tactics. And third, it was noted that the action related to a growing area of law referred to as “elder care”, and such area was of increasing public importance.

issues:

Did the trial judge err in denying partial indemnity costs to the appellant?

holding:

Appeal dismissed.

reasoning:

Did the trial judge err in denying partial indemnity costs to the appellant?

No. The Court began by noting that an appellate court must take a deferential approach when reviewing a costs award, which are of course discretionary. A costs award may only be set aside if the trial judge has made an error in principle or if the award is “plainly wrong” (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9). Moreover, even where a trial judge has relied on a factor that is unsupported by law, an appellate court should nonetheless exercise deference unless there is nothing in the factual circumstances or argument to independently support the order despite the error(s) (Bell Canada v. Olympia & York Developments Ltd., 1994 ONCA 239).

With respect to the first of the trial judge’s reasons, the trial judge cited no authority for the proposition that the involvement of an insurer could, in and of itself, justify a costs award. The relevant question was how resources are used in litigation, not the mere existence of resources, or the identity of the party who holds them. In other words, unless it could be demonstrated that the insurer abused its resources through reprehensible conduct (i.e. by unnecessarily lengthening proceedings or bringing improper, unnecessary or vexatious motions), the trial judge had no basis in law to justify his award based on the “David and Goliath” characterization. In fact, the Court warned against the pitfalls of stereotyping the proceedings, particularly given that the respondent was well-represented, and called experts on her behalf.

With respect to the second of the trial judge’s reasons, the Court held that a refusal of a party to offer a settlement is not a reason to deny that party costs where the refusal is proven reasonable by the verdict. In this case, the appellant was ultimately successful at trial, and therefore the decision of the insurer to not offer a settlement proved reasonable. This principle is not impacted by the wealth of the party who chose not to make an offer. The Court once again emphasized the importance of not making bare generalizations, particularly with respect to certain reputations that insurers may have. Relevant factors in costs awards generally focus on the conduct of the parties within the particular proceedings, and not on a party’s rumoured reputation for how it chooses to conduct itself in proceedings generally.

Notwithstanding the Court’s finding that the first two reasons amounted to errors in principle, the trial judge’s costs award was nonetheless upheld as a result of the third reason. The third reason could independently support the order regardless of these errors, and therefore engaged the deference owed, as per the principle in Bell Canada. Rule 57.01 of the Rules of Civil Procedure contemplates the court considering the nature, importance, and complexity of issues in exercising its costs discretion. Further, a “novel” issue can support a no costs order as an exception to the general approach that successful parties will receive their costs (Childs v. Desormeaux (2004), 239 D.L.R. (4th) 61 (Ont. C.A.)). On that note, the trial judge was well placed to make the finding that the case raised an important and novel issue, and accordingly his decision was owed deference.


UD Trading Group Holding PTE. Limited v. TransAsia Private Capital Limited, 2021 ONCA 279

[Paciocco J.A. (Motion Judge)]

Counsel:

M.D. Schafler, K. Kraft, A. Basmadijan and R. Curcio, for the moving parties

G.J. Pollack and C. Li, for the responding parties

Keywords: Contracts, Debtor-Creditor, Commercial Lending, Security, Receivables, Guarantees, Enforcement, Unjust Enrichment, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Appeals, Stay Pending Appeal, Expedited Appeals, Jurisdiction, Forum Non Conveniens, Forum Selection Clauses, Attornment, Anti-Suit Injunctions, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March 1, 2017), ss. 12.1(4), BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 2257573 Ontario Inc. v. Furney, 2020 ONCA 742, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674 (CA), Heidari v. Naghshbandi, 2020 ONCA 757, Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Forbes Energy Group Inc. v. Parsian Energy Rad Gas, 2019 ONCA 372, Young v. Tyco International of Canada Ltd., 2008 ONCA 709, Patterson v. EM Technologies, Inc, 2013 ONSC 5849, Wilson c. Fernand Campeau & Fils Inc., 2020 ONCA 384, Osman v. Markplan Inc., 2018 ABCA 215, Douez v. Facebook, Inc., 2017 SCC 33, ECS Educational Consulting Services Canada Ltd. v. Al Nahyan (2000), 44 C.P.C. (4th) 111, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, Lilydale Cooperative Ltd. v. Meyn Canada Inc., 2019 ONCA 761, Fraser v. 4358376 Canada Inc., 2014 ONCA 553, T Films S.A. v. Cinemavault Releasing International Inc., 2014 ONSC 4138, 1092072 Ontario Inc. (Elfe Juvenile Products) v. GCan Insurance Co., 2008 CanLII 51922 (Ont. S.C.)

facts:

This was a motion for a stay pending appeal and for an order expediting the appeal. The parties were involved in a complex, multijurisdictional commercial relationship. The responding parties had a loan agreement between themselves, with TransAsia Private Capital Limited (“TAP”) as lender and Rutmet Inc. (“Rutmet”) as debtor which was secured by the receivables of Rutmet. The moving parties are a group of related companies who did business with Rutmet and owed Rutmet money in the form of receivables. P.G. was the principal of the moving parties and had given an individual guarantee of the receivables. Other than Rutmet, none of the parties carried on business in Ontario. The various parties involved were based in the British Virgin Islands, Malaysia, UAE and Singapore. When Rutmet defaulted on its obligations under its loan with TAP, a complicated string of litigation arose, leading ultimately to this appeal.

Litigation History

TAP commenced a receivership action against Rutmet in Ontario to compel disclosure of information that TAP needed to make a claim under Rutmet’s insurance coverage. This action was discontinued once the disclosure was obtained. When insurance coverage was denied, TAP brought an application against the insurer, which remains outstanding.

TAP then took steps to enforce its guarantee from the moving parties by instituting an action in Singapore (the “Singapore Action”). The Singapore Action has been adjourned and delayed multiple times, including when the moving parties sought a stay because Ontario is a more appropriate forum.

P.G. lived in Dubai, and in accordance with UAE law, TAP sent a final demand for payment under the guarantee. P.G. did not comply with the demand and enforcement proceedings were commenced and are in the pre-trial phase (the “UAE Action”).

The moving parties also brought the action in Ontario (the “Underlying Action”). The moving parties’ argument was that TAP had already recouped the money owed to it by Rutmet and sought a declaration that there were no amounts outstanding either as receivables or under the various guarantees. The moving parties also argued that TAP had been unjustly enriched by enforcing its security after having already been paid.

The moving parties brought a motion in the Underlying Action for anti-suit injunctions restraining TAP and Rutmet from continuing the Singapore Action and the UAE Action. TAP brought a cross-motion, seeking a permanent stay of the Underlying Action on the basis of forum non conveniens. The motion judge dismissed the motion and denied the anti-suit injunction. The motion judge granted the order sought by the cross-motion and stayed the Underlying Action on the basis of forum non conveniens. The moving parties appealed from the stay of the Underlying Action. In furtherance of this appeal, the moving parties brought this motion seeking a stay of the motion judge’s decision pending appeal and an expedited appeal.

issues:

(1) Should a stay pending appeal be granted?

(2) Should an expedited appeal be granted?

holding:

Motion denied.

reasoning:

(1) Should a stay pending appeal be granted?

No. Where a party seeks a stay pending appeal, the overarching consideration is whether the interests of justice call for a stay: BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620. This analysis is informed by the three factors described in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: (a) is there a serious question to be determined on the appeal; (b) would the moving party suffer irreparable harm if the stay were refused; and (c) which of the parties would suffer greater harm.

A Serious Issue to be Determined on Appeal

The threshold at this stage is very low and requires that the appeal be neither frivolous nor vexatious. An appeal is “frivolous” when it is devoid of merit or with little prospect of success: Heidari v. Naghshbandi, 2020 ONCA 757. It is “vexatious” if “taken to annoy or embarrass the respondent or conducted in a vexatious manner, including an oblique motive for launching the appeal”: Heidari.

The test for granting an anti-suit injunction and a permanent stay under forum non conveniens are distinct tests. In determining whether to grant an anti-suit injunction, the inquiry is from the foreign court’s perspective. The domestic judge considering the anti-suit injunction is to ask whether, applying Ontario’s principles of forum non conveniens, the court where the action sought to be restrained was commenced could reasonably have concluded there was no alternative forum that was “clearly more appropriate”. If the answer is yes, the decision of the foreign court to assume jurisdiction should not be interfered with: Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897.

By contrast, in determining whether a domestic action should be stayed, the domestic court must determine for itself whether there is another forum that is “clearly more appropriate [than the domestic court] for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute”. A stay is appropriate only if this is so: Club Resorts Ltd. v. Van Breda, 2012 SCC 17.

The moving parties raised arguments that suggested the motion judge may have conflated or erroneously elided the two tests and so the appeal was not frivolous. The Court of Appeal was also not prepared to find the appeal was brought with oblique motive or to delay or frustrate the enforcement of TAP’s security.

The Court of Appeal also considered the moving parties’ submissions that the seriousness of the issue made up for the weaknesses in the other areas of the RJR-MacDonald test. While the Court of Appeal did not accept this as an outright proposition, it was willing to say that where a preliminary assessment of the merits of the appeal shows it to be strong, this is a proper consideration in deciding whether to grant the stay, given the repeated recognition by the Court that the strength of one RJR-MacDonald factor may compensate for the weakness of others. However, the Court was not convinced that the seriousness of the issue in this case outweighed the weaknesses in other areas.

Firstly, the moving parties’ arguments focused on the motion judge’s failure to conduct a proper forum non conveniens analysis as articulated in Van Breda. However, Van Breda clearly confined itself to tort cases and the case at hand was a contracts dispute. While guidance can still be taken from Van Breda, the failure of the motion judge to make express reference to it was not as significant as the moving parties suggested. Secondly, the various documents signed by the parties had forum selection clauses permitting actions to be brought outside of Ontario. Relying on the decisions in Douez v. Facebook, Inc., 2017 SCC 33, the motion judge held that the parties should be bound by the clause, which stands as a material impediment to the moving parties’ claim that the motion judge erred in permanently staying the Underlying Action.

Irreparable Harm

The moving parties advanced three grounds on which they would suffer irreparable harm if a stay was not granted: (i) litigation disadvantage; (ii) risk of insolvency; and (iii) prejudicing them in the Singapore and UAE Actions by leaving in place the factual findings made by the motion judge pending appeal. The Court of Appeal rejected all three arguments.

(i) Litigation Disadvantage

The moving parties submitted that if the Singapore and UAE actions continued and a stay pending appeal was not granted, the decisions in the Asian courts would render the Underlying Action moot and they would lose the chance to have the merits determined in Ontario and be forced to litigate in multiple jurisdictions. However, there was nothing in place preventing the Singapore Action and the UAE Action from moving forward, whether the stay pending appeal was granted or not. Further, the moving parties had no right to have the litigation conducted in Ontario only, nor was there a legal or normative right to have the Ontario proceedings disposed of first. The foreign actions were commenced first and so the moving parties had no expectation of the Ontario proceedings being resolved first.

Even if the moving parties succeed on their appeal, the risk remained that the foreign courts may render a decision before the merits of the Underlying Action was adjudicated. Further, it was the moving parties who brought the Underlying Action, and so they could not argue that they were being forced to litigate in multiple jurisdictions.

(ii) Risk of Insolvency

The moving parties did not adequately explain how the failure to grant a stay pending appeal would increase or alter their risk of insolvency. Even if they had, the consideration would go both ways – the responding parties could legitimately argue that the risk of insolvency weighed in favour of denying the stay because additional delay could compromise the responding parties’ ability to recover funds or assets from the insolvent debtor.

(iii) Findings of the Motion Judge

The motion judge did not make any factual findings as to the merits of the Underlying Action. Further, even if the motion judge had, her findings were in response to factual claims raised by the moving parties. A party’s decision to voluntarily assume litigation risk does not qualify as irreparable harm: M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134.

Balance of Convenience

The Court accepted that the moving parties had taken steps to ameliorate any harm the responding parties may suffer if the stay was granted, however, the steps did not address the further delays to the UAE and Singapore Actions. The foreign actions have been delayed many times leading to financial consequences for the responding parties. Further delay would only worsen this and so the balance of convenience favoured the responding parties.

Other Considerations

The moving parties also argued that the responding parties had attorned to the jurisdiction of Ontario by bringing the receivership proceeding and the application against the insurance company in Ontario. The moving parties did not have standing in either proceeding and both parties did business in Ontario. The Court failed to see how TAP’s decision to bring those proceedings in Ontario demonstrated that they had attorned to the jurisdiction in a separate action predicated on off-shore agreements. Nor did the responding parties’ decision to bring a security for costs motion in this appeal assist the moving parties. Attornment occurs where a party takes steps suggesting they have accepted jurisdiction, which typically are steps to defend the merits of a proceeding. Attornment does not occur when the party takes steps to contest the jurisdiction. The responding parties’ motion for security for costs was a procedural step in the dispute over jurisdiction, not a step to defend the merits.

(2) Should an expedited appeal be granted?

No. Appeals of this kind are to be expedited only where the motion judge is satisfied the urgency of the matter requires an earlier hearing date: Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March 1, 2017), at 12.1(4). The Court of Appeal saw no urgency in this matter. The motion for an expedited appeal was brought as a concession to reduce the harm occasioned by a stay pending appeal. The stay having been denied, there was no reason to expedite the appeal.


Dia v. Calypso Theme Waterpark, 2021 ONCA 273

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

K. Black and K. Day, for the appellants

D. Rana, for the respondent

Keywords: Torts, Assault, Civil Procedure, Summary Judgment, Evidence, Adverse Inferences, Admissibility, Affidavits, Information and Belief, Hearsay, Crown Brief, Rules of Civil Procedure, Rules 39.01(4), 39.04(2), 20.02(1), and 20.04(2.2), Hryniak v. Mauldin, 2014 SCC 7, Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200, Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 50 O.R. (3d) 97 (C.A.), 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, Butera v. Chown, Cairns LLP, 2017 ONCA 783

facts:

The appellants were assaulted. The respondent claimed he had nothing to do with the assault. More than five years after the commencement of this action, the respondent brought a motion for summary judgement. In granting the summary judgment motion and dismissing the action against the respondent, the motion judge held that there was no genuine issue requiring trial. The motion judge relied on the fact that none of the appellants identified the respondent as one of the men involved. The motion judge also rejected an argument by the appellants that there might be evidence at trial that could show the respondent was involved. The motion judge stated that on a motion for summary judgment, the responding party may not rely on the prospect of additional evidence that may be tendered at trial. Finally, the motion judge rejected any concern from the fact that this was a partial summary judgment motion. She found that there was no risk of inconsistent findings being made when the balance of the action was tried. The appellants appealed.

issues:

Did the motion judge err in granting the summary judgment motion?

holding:

Appeal allowed.

reasoning:

Did the motion judge err in granting the summary judgment motion?

Yes. The Court held that the motion judge’s conclusion reflected both errors of law and palpable and overriding errors of fact. Given the nature of the claim and the type of evidence, summary judgment was an inappropriate avenue. In addition, the fact that the motion was brought more than five years after the action was commenced was another factor that ought to have weighed into the calculus as to whether a motion for summary judgment was appropriate. Based on the following, the Court allowed the appeal, set aside the judgment below, and, dismissed the summary judgment motion.

The Evidentiary Record

The evidentiary record consisted of photographs of the respondent, the police file, the requests to admit and responses, the accounts of legal expenses, and the examinations for discovery of two of the appellants. The respondent did not file an affidavit and the appellants did not file any evidence in response to the summary judgment motion. The motion judge did not draw an adverse inference from the fact that the respondent did not file an affidavit. The Court held that the motion judge failed to take into account the fundamental rationale for the express provision in Rule 20.02(1) that permits an adverse inference to be drawn, that is, an attempt by the moving party to avoid cross-examination. The fact that the respondent did not make himself available for cross-examination was the type of situation where an adverse inference would have been properly drawn. The respondent sought to have the action dismissed against him on the basis that he was not part of the assault, without providing the appellants with an opportunity to test that contention. The fact that the respondent would not affirmatively attest to his non-involvement ought to have been a matter of significant concern to the motion judge.

The remaining evidence did not establish that there was no genuine issue for trial regarding the central question whether the respondent was part of the assault. The motion judge seemed to have proceeded on the basis that the police file was properly before the court. It was not. Apparently, the parties thought that the statements and reports in the file were admissible hearsay under r. 20.02(1). That approach ignored the requirement under r. 39.01(4), that an affidavit based on information and belief (i.e. hearsay) must state the source of the information and the fact of the belief. The legal assistant’s affidavit did not satisfy that requirement, nor could it have, because the legal assistant was not in a position to properly form a belief as to the accuracy of the information contained in the witness statements and the police reports. With that information removed, it left the motion judge with the photographs of the respondent, the examinations for discovery of two of the appellants, the requests to admit and responses, and the accounts of the respondent’s legal expenses, which were of no probative value by themselves.

None of that evidence provided any foundation for the motion judge to conclude that no genuine issue for trial existed; therefore, was insufficient evidence on which the motion judge could reach “a fair and just determination on the merits”. This was sufficient to allow the appeal.

Burden of Proof and the Risk of Inconsistent Findings

The Court also addressed other aspects of the motion judge’s decision. One was that it was evident that the motion judge reversed the burden of proof from the respondent, who was the moving party, to the appellants as responding parties. This was wrong in law, as the respondent was required to prove that he was not involved in the assault. That was the only way he could show that there was no genuine issue for trial. The fact that both sides to a motion for summary judgment may bear evidentiary burdens does not alter where the burden of proof originates. The motion judge also said that there was no risk of inconsistent findings being made when the balance of the action is tried. The Court noted the risk of inconsistent findings was alive in this case as a blame game could result at trial if the appellants call the other defendants. The motion judge did not consider this.

The Purpose of Summary Judgment

The Court also emphasized that the fundamental purpose of summary judgment is to provide “proportionate, cost-effective and timely dispute resolution”. An unsuccessful summary judgment motion adds both expense and delay to a proceeding. In this case, the proceeding had already taken over five years to get to trial and this motion only exacerbated the situation. The Court suggested that, in such cases, motion judges ought to stand back and consider whether the pursuit of a summary judgment motion is likely to achieve its fundamental purpose.


Nagpal v. IBM Canada Ltd., 2021 ONCA 274

[Doherty, Pepall and Thorburn JJ.A.]

Counsel:

J. Dolman and A. Reid, for the appellant

M.N. Freeman, for the respondent

Keywords: Contracts, Employment, Wrongful Dismissal, Short-Term Disability, Resignation, Abandonment, Frustration, Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Standard of Review, Question of Mixed Fact and Law, Palpable and Overriding Error, Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.), Betts v. IBM Canada Ltd., 2015 ONSC 5298, aff’d 2016 ONSC 2496 (Div. Ct.), Pereira v. The Business Depot Ltd., 2009 BCSC 1178, rev’d on other grounds, 2011 BCCA 361, Duong v. Linmar Corp, 2010 ONSC 3159, aff’d 2011 ONCA 38, Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, Antonacci v. Great Atlantic & Pacific Company of Canada Ltd. (1998), 35 C.C.E.L. (2d) 1 (Ont. C.J.), aff’d 128 O.A.C. 236 (C.A.), Ciszkowski v. Canac Kitchens, 2015 ONSC 73, Hryniak v. Mauldin, 2014 SCC 7, Leeming v. IBM Canada Ltd., 2015 ONSC 1447, Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.), Cheong v. Grand Pacific Travel & Trade (Canada) Corp., 2016 BCSC 1321

facts:

The respondent, V.N., was employed by the appellant for 20 years, mostly in various high-level management positions. In 2011, he obtained a new leadership position and began experiencing stress and mental health issues. In March 2013, V.N. advised IBM that he had been recommended to take six weeks off of work by his treating doctors and was referred to Manulife, IBM’s short term disability policy (“STD Policy”) STD Policy administrator.

Under the STD Policy, an employee had to apply for benefits and provide supporting documentation. If the coverage is denied, an employee must either return to work or take steps within one month to appeal the decisions, or they will be presumed to have voluntarily resigned. Manulife denied V.N.’s claim and informed him of his right to appeal but said that if there was no new information, there was no point in appealing.

V.N. contacted his doctors and they confirmed they had nothing additional to provide and so he felt there was no point in appealing. He chose to engage legal counsel, who wrote a letter to IBM advising that V.N. could not return to work, that if additional information became available, they would happily provide it and most importantly, that V.N. had no intention of resigning his position, unless IBM negotiated an appropriate exit package. This letter was not responded to until 6 weeks later, when IBM gave V.N. three options, all predicated on his return to work. If V.N. did not respond within 3 weeks, he would be considered to have voluntarily resigned. V.N.’s lawyer replied stating that V.N. had no intention to resign or be starved into settlement. The date for choosing one of the alternatives passed and IBM sent a final letter stating that it considered V.N. to have abandoned his employment.

V.N. commenced the underlying action against IBM for wrongful dismissal. IBM brought a summary judgment motion for the dismissal of the claim. The motion judge dismissed IBM’s motion and instead granted summary judgment in favour of V.N., as the parties had agreed that if IBM could not successfully establish that V.N. had resigned, abandoned his position or that the contract was frustrated, it would follow that V.N. was wrongfully terminated and only an assessment of damages would remain.

issues:

(1) Did the motion judge make palpable and overriding errors in misapprehending evidence that V.N. had resigned, abandoned his employment or that his contract was frustrated?

(2) Did the motion judge err in holding that the STD Policy was not part of the employment contract and that V.N. was not estopped from denying the enforceability of the STD Policy?

(3) Did the motion judge err in finding that IBM had a duty to further discuss V.N.’s medical condition with him?

holding:

Appeal dismissed.

reasoning:

(1) Did the motion judge make palpable and overriding errors in misapprehending evidence that V.N. had resigned, abandoned his employment or that his contract was frustrated?

No. The Court noted that the findings of the motion judge were entitled to substantial deference on appeal as questions of mixed fact and law. Absent an error in principle or error with regard to a purely legal question, the motion judge’s findings should be reviewed on a palpable and overriding error standard: Hryniak v. Mauldin, 2014 SCC 7. The Court of Appeal addressed the legal test for each of the grounds argued by the appellants, but saw no error in approach or principle by the motion judge that would justify appellate intervention.

Resignation

Resignation must be clear and unequivocal. The evidence must objectively reflect an intention to resign, through words or conduct. Context is important. The totality of the circumstances must be considered: Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (C.A.).

Given V.N.’s repeated statements through his lawyer that he did not intend to resign, the argument for a resignation was rejected without much discussion.

Abandonment

The test for abandonment is whether the statements or actions of an employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract and, in particular, the implied term of every employment contract that the employee must attend work unless excused or unable: Betts v. IBM Canada Ltd., 2015 ONSC 5298, aff’d 2016 ONSC 2496 (Div. Ct.).

IBM argued that notwithstanding V.N. stating he did not intend to resign, his conduct in failing to appeal Manulife’s decision or to return to work amounted to abandonment and that a reasonable person would view the failure to follow the terms of the STD Policy as such. The motion judge rejected this argument because that conduct could not be looked at in isolation. While V.N. and his lawyer’s conduct was not without fault, they had made many attempts to reach out to IBM and negotiate, which IBM ignored and chose instead to present V.N. with unrealistic alternatives and ultimatums.

The Court of Appeal found that there was no palpable and overriding error in the motion judge’s findings of fact or his conclusion that, viewed objectively, V.N.’s actions do not reflect a clear intention to resign, nor do they indicate an intention to no longer be bound by the employment contract.

Frustration

A contract is frustrated where, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract: Duong v. Linmar Corp, 2010 ONSC 3159. The determination of whether a temporary incapacity to work constitutes frustration is also contextual. Illness alone is not a frustrating event and one must look at the length of the illness in relation to the duration of the employment contract. Evidence that relates to the post-termination nature and extent of an employee’s disability is permitted only if that evidence sheds light on the nature and extent of the employee’s disability at the time of the employee’s dismissal: Ciszkowski v. Canac Kitchens, 2015 ONSC 73.

IBM argued that at the time of his termination, there was no reasonable likelihood of V.N. returning to work and therefore the contract was frustrated. The motion judge found, and the Court of Appeal affirmed, that IBM had very little information on V.N.’s condition, and made very little effort to obtain any, and so it had no basis to underpin frustration. IBM also sought to rely on evidence that came to light post-termination, and cited Ciszkowski to support its position. The motion judge rejected this argument, because Ciszkowski only applies when the information is relevant to the dismissal date. Since the evidence did not come to the attention of IBM until after, it could not have possibly informed its assertion that the contract was frustrated. Further, the evidence that was before IBM, namely the letters from V.N.’s lawyer, did not show any evidence of illness so severe that V.N. would never return to work. The motion judge’s interpretation of these points was entitled to deference and upheld by the Court.

(2) Did the motion judge err in holding that the STD Policy was not part of the employment contract and that V.N. was not estopped from denying the enforceability of the STD Policy?

No. IBM advanced the argument that by virtue of the STD Policy, V.N. had voluntarily resigned his position. IBM noted that the policy has been upheld by other courts as to relying on non-compliance with the STD Policy to justify dismissal or finding resignation/abandonment. The motion judge held that termination provisions rebutting the common-law entitlement to reasonable notice require clear, express and unambiguous language. The STD Policy could be unilaterally amended by IBM at any time and so there was insufficient common intention to be bound by its terms such that it formed part of the employment contract. This analysis was supported by relevant authority such as Leeming v. IBM Canada Ltd., 2015 ONSC 1447.

The motion judge also held that it was not a necessary determination because even if the STD Policy formed part of the contract, it only created a presumption of resignation and that V.N.’s express statements and other conduct rebutted that presumption.

The Court agreed with the motion judge that it was not necessary to decide whether the STD Policy formed part of the contract. Regardless of whether it forms part of the contract of employment, the presumption contained in the STD Policy could be relevant to a determination of whether Mr. Nagpal in fact clearly and unequivocally resigned his employment, as suggested by the Divisional Court in Betts. However, the presumption must be looked at in the context of the other evidence, and it was open to the motion judge to find that the evidence did not clearly indicate an intention to resign or abandon employment.

Given the finding that it was not necessary to determine whether the STD Policy formed part of the contract, it was not necessary to consider the estoppel arguments.

(3) Did the motion judge err in finding that IBM had a duty to further discuss V.N.’s medical condition with him?

IBM claimed that the motion judge erred by asserting that IBM had a duty to discuss V.N.’s medical condition with him. However, the Court dismissed this submission because the appellant’s submissions took the motion judge’s reasons out of context. The motion judge’s remarks were in the context of his analysis of whether IBM had established resignation or abandonment, and id not speak to a free standing duty on IBM’s part.


SHORT CIVIL DECISIONS

Segura Mosquera v. Ottawa Public Library, 2021 ONCA 275

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

G.M.S.M., in person

S.J. Huxley, for the respondent

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b), Rules of Civil Procedure, Rule 37.17, Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.)


Toronto (City) v. Queen-St. Patrick Market Inc., 2021 ONCA 276

[Huscroft, Nordheimer and Harvison Young JJ.A.]

Counsel:

J. Larry and D. Rosenbluth, for the appellant

M.A. Wright and G. Thomson, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Relief from Forfeiture, Standard of Review


Bogue v. Miracle, 2021 ONCA 278

[Benotto, Miller and Trotter JJ.A.]

Counsel:

I.J. Collins, for the appellant A.M.

K.H. Page, for the respondent G.B.

R.J. Reynolds and M. Pretsell, for L.M.S. and V.M.

Keywords: Contracts, Solicitor-Client, Contingency Fee Agreements, Enforcement, Receiverships, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101, Indian Act, R.S.C. 1985, c. 1-5, ss. 29, 89, Borden & Elliot v. Temagami First Nation, [2009] 3 C.N.L.R. 30 (Ont. S.C.), Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96


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