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Good afternoon.
Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario.
In McKitty v. Hayani, the court determined that the definition of death at common law includes neurologically determined death (ie. brain death). The other, more common, method of determining death is cardiorespiratory failure (heart stops beating). The Court determined that which of the two criteria for determining death are used by the medical field in making a decision to withdraw mechanical ventilation ought to take into consideration the patient’s religious beliefs. However, in this case, which did not have an adequate evidentiary record and, in any event, was moot, the Court ultimately did not determine whether the doctor’s declaration of the patient as legally dead under the neurological criterion infringed her constitutional rights.
Other topics covered this week included family law (custody and access and child protection), insurance coverage in the MVA context, assessments of lawyers’ accounts, costs in the expropriation context, contractual interpretation in the mortgage and forbearance agreement context, and breach of contract and negligence in the RFP context.
Wishing everyone a Happy Thanksgiving long weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
McKitty v. Hayani, 2019 ONCA 805
Keywords: Health Law, Legal Death, Definition, Certificate of Death, Constitutional Law, Freedom of Religion, Right to Life, Liberty and Security of the Person, Equality Rights, Canadian Charter of Rights and Freedoms, ss 2(a), 7, 15(1), Vital Statistics Act, RSO 1990, c V4, Reg 1094, ss 21(1), 35(2), Public Hospitals Act, Regulation 965, s 17(1), Interpretation Act, RSC 1970, C I-23, Trillium Gift of Life Network Act, RSO 1990, c H 20, Leclerc (Succession) v Turmel, [2005] JQ no 2451 (SC), R v Kitching (1976), 32 CCC (2d) 159 (Man CA), Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927, Tremblay v Daigle, [1989] 2 SCR 530, Halpern v Canada (Attorney General), (2003) 65 OR (3d) 161 (CA), Edwards v Canada (Attorney General), [1930] 1 DLR 98 (PC), R v Buhay, 2003 SCC 30, Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, McKinney v University of Guelph, [1990] 3 SCR 229, M v H, [1999] 2 SCR 3, Miron v Trudel, [1995] 2 SCR 418, Hill v Church of Scientology, [1995] 2 SCR 1130, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Syndicat Northcrest v Amselem, 2004 SCC 47, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, R v Big M Drug Mart Ltd, [1985] 1 SCR 295, R v Edwards Books and Art Ltd, [1986] 2 SCR 713, Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, Carter v Canada (Attorney General), 2015 SCC 5, Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, R v Oakes, [1986] 1 SCR 103, Watkins v Olafson, [1989] 2 SCR 750, Grant v Torstar Corp, 2009 SCC 61, Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835
Del Hugh Terrelonge v CVC Ardellini Investments Inc., 2019 ONCA 811
Keywords: Contracts, Interpretation, Real Property, Mortgages, Forbearance Agreements, Remedies, Relief from Forfeiture, Courts of Justice Act, RSO 1990, c C43, s 98, Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53
Chong v. Donnelly, 2019 ONCA 799
Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Enforcement, Contempt
Bradfield v Royal Sun Alliance Insurance Company of Canada, 2019 ONCA 800
Keywords: Contracts, Insurance, Automobile, Coverage, Waiver, Estoppel, Insurance Act, RSO 1990, c I8, s 131(1), Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., [1994] 2 SCR 490, Economical Insurance Group v Fleming (2009), 89 OR.(3d) 68 (SCJ), aff’d 2009 ONCA 112, Rosenblood Estate v Law Society of Upper Canada (1989), 37 C.C.L.I. 142 (Ont HC), Canadian Federation of Students/Fédération canadienne des étudiant(e)s v Cape Breton University Students’ Union, 2015 ONSC 4093, Logel Estate v Wawanesa Mutual Insurance Company [2008] ILR I- 4744 (Ont SC)
Owen Sound (City) v Naidal Incorporated , 2019 ONCA 804
Keywords: Municipal Law, Expropriation, Civil Procedure, Appeals, Costs, Expropriations Act, R.S.O. 1990, c. E.26, s. 32(1), Re A.M. Souter & Co. Ltd. and City of Hamilton (1973), 1 O.R. (2d) 760 (C.A.), Parks v Ontario (Ministry of Transportation) (1997), 109 O.A.C. 1 (Div. Ct.)
Huron-Perth Children’s Aid Society v. JL, 2019 ONCA 809
Keywords: Family Law, Child Protection, Crown Wardship, Child and Family Services Act, RSO 1990, c C.11, ss. 37(2)(b)(i) and (ii), Ludwig v. Ludwig, 2019 ONCA 680
Adler v. Thomson, Rogers, 2019 ONCA 810
Keywords: Contracts, Solicitor and Client, Assessment of Accounts, Solicitors Act, RSO 1990, c S15, s 11, Echo Energy Canada Inc. v. Lenczner Slaght, 2010 ONCA 709
CG Acquisition Inc. v P1 Consulting Inc., 2019 ONCA 745
Keywords: Contracts, Requests for Proposal, Torts, Negligence, Duty of Care, Civil Procedure,Summary Judgment
Criminal Decisions
R. v B., 2019 ONCA 797
Keywords:Criminal Law, Obstruction of Justice, Evidence, Alibi, R. v Cleghorn, [1995] 3 SCR 175, R. v Noble, [1997] 1 SCR 874, R. v Hogan (1982), 2 CCC (3d) 557 (Ont. CA), R. v Gagnon, 2006 SCC 17
R. v. S., 2019 ONCA 807
Keywords:Criminal Law, Sexual Assault, R. v Dinardo, 2008 SCC 24, R. v Vuradin, 2013 SCC 38, R. v Gagnon, 2006 SCC 17
R. v. M.G., 2019 ONCA 796
Keywords:Criminal Law, Sexual Assault, R. v W.D, [1991] 1 SCR 742
R. v M., 2019 ONCA 808
Keywords:Criminal Law, Criminal Harassment, Counselling Murder, Vetrovec Witness, R. v Vetrovec [1982] 1 SCR 811, R. v Bidawi, 2018 ONCA 698, R. v Shier, 2018 ONSC 5624
Ontario Review Board
K. (Re), 2019 ONCA 802
Keywords:Ontario Review Board, Not Criminally Responsible, Sexual Assault, Criminal Code, RSC 1985, Sheikh (Re), 2019 ONCA 692, Sim (Re), 2019 ONCA 719, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, R. v Owen, 2003 SCC 33
A. (Re), 2019 ONCA 812
Keywords:Ontario Review Board, Not Criminally Responsible, Discharge, Marchese (Re) 2018 ONCA 307, Hahmoud (Re) 2018 ONCA 317, Carrick (re), 2015 ONCA 866
CIVIL DECISIONS
McKitty v. Hayani, 2019 ONCA 805
[Doherty, Miller and Paciocco JJ.A.]
Counsel:
Hugh R. Scher, for the appellant
Erica J. Baron, Christine Wadsworth and Leah Ostler, for the respondent
FACTS:
The appellant was found unconscious on a Brampton sidewalk and taken to the hospital. She had suffered significant brain damage due to a lack of oxygen supply to the brain (hypoxia). She was placed on a ventilator. Initially, her brain stem was still functioning and she was able to breathe spontaneously. While she was in the hospital, a second hypoxic event resulted in the loss of the ability to breathe without a ventilator. Following this event the respondent, Dr. H, a critical care physician at the hospital, conducted diagnostic tests on the appellant’s brain functioning and determined that the appellant met the neurological criteria for death. He completed a death certificate the next day.
The next day, the appellant’s parents, acting as her substitute decision-makers, sought an interlocutory injunction restraining the respondent from withdrawing mechanical ventilation. The injunction was granted. The underlying application sought various remedies, including an order rescinding the appellant’s death certificate, a declaration that the appellant was not dead, a declaration that the Consent and Capacity Board had jurisdiction to adjudicate any disputes regarding the appellant’s treatment as well as the determination of her death, and a declaration that the appellant’s Charter rights had been breached.
The notice of constitutional question in the Superior Court challenged the constitutional validity and applicability of the Vital Statistics Act , and its regulations, particularly s. 21(1) of the Act, and 35(2) of the Regulation with respect to the requirements to determine and certify death in Ontario; and the unconstitutional actions of the respondent in failing to take into consideration the applicant’s religious beliefs as part of the legal process to determine and certify death pursuant to the Canadian Guidelines and the Vital Statistics Act.
The notice of constitutional question in the Court of Appeal was somewhat broader, referencing more legislation and the common law. The appellant challenged the constitutional validity and applicability of the Public Hospitals Act and its Regulations, particularly Regulation 965, s. 17(1), and the Vital Statistics Act (the “Act”), and its regulations, particularly s. 21(1) of the Act, and 35(2) of the Regulation, with respect to the statutory duty imposed on doctors to determine and certify death in Ontario.
Furthermore, the appellant challenged the unconstitutional application of the common law to determine and define death in a manner that fails to account for and respect the individual wishes, values and beliefs of the appellant, or Charter values and the application of the Charter to the appellant and respondent.
Lastly, the appellant challenged the allegedly unconstitutional actions of the respondent in failing to take into consideration the appellant’s wishes, values and religious beliefs as part of the legal process to determine and certify death pursuant to the statutory duty imposed upon doctors.
The application judge dismissed the application.
ISSUES:
Did the application judge err in finding that:
(1) death at common law includes death by neurological criteria;
(2) the appellant is not a subject of Charter rights;
(3) the Charter does not apply to the respondent;
(4) the appellant’s rights under ss. 2(a), 7, and 15(1) of the Charter were not engaged; and
(5) the Consent and Capacity Board had no jurisdiction over the appellant.
HOLDING:
Appeal dismissed.
REASONING:
(1) No. The medical field uses two criteria for determining death: cardiorespiratory failure and neurologically determined death. Cardiorespiratory failure is the simplest test, and is applied in the vast majority of cases. However, in the medical field, either criterion is sufficient to determine death. Mechanical ventilation has made it possible to maintain cardiorespiratory functioning despite total brain death, and so, diagnostic tests are used to establish the occurrence of total brain death. Total brain death must be distinguished from other neurological damage that does not constitute brain damage. Nothing less than total brain damage constitutes death under this criterion.
The criterion for determining death at law has not been prescribed legislatively. However, some Ontario statutes adopt, either expressly or implicitly, the criteria used in medical practice. The medical practice of using neurological and cardiorespiratory criteria to diagnose death has been accepted by Canadian courts. In estates litigation, neurological criteria have been accepted in establishing the date of death for succession purposes. In the criminal law context, neurological criteria have been accepted in the analysis of cause of death.
The appellant argued that the state has an obligation to define death through law, and that the common law as formulated by the application judge allows the medical profession an unfettered license to set the criteria for death. This argument was rejected on the basis that the common law is not required to defer to the definition of death as defined by the medical profession, but has chosen to accept it because the common law has judged the medical profession to provide a sound answer to the question of how to determine when a person has died.
(2) Yes. The appellant also objected to the common law definition of total brain death as a criterion of death for reasons that it is inherently unconstitutional. The absence of accommodation for persons who object on religious grounds to the concept of brain death is unconstitutional. The application judge provided two bases for concluding that the appellant could not be a subject of Charter rights, both which were rejected on this appeal: (i) the appellant was physically incapable of exercising rights; and (ii) the framers of the Charter did not intend to extend Charter rights to brain-dead patients.
Regarding (i), the Court stated that many persons, by reason of immaturity, decline, or other physical or mental impairment, have little or no ability to exercise many of the rights and freedoms guaranteed by the Charter. These impairments have no bearing on their status as subjects of Charter rights. Further, some Charter rights protect not only one’s interest in doing, but simply in being.
With respect to (ii), the application judge’s reasoning was as follows: (a) the total brain death criterion in the common law pre-dated the Charter; (b) the framers of the Charter would have been aware of this; (c) nothing in the Charter purported to change the common law in this respect; and therefore, (d) the Charter does not “confer legal personhood to someone who is brain dead.” The Court rejected this reasoning by stating that the Charter does not confer legal personality, it confers rights onto “everyone” and “every citizen”. Who is recognized as a person is defined by common law. Second, the fact that a common law rule predated the Charter and the framers showed no intention of changing it is not determinative that the rule is consistent with the Charter. Third, where a common law rule that limits access to the protections of the Charter is the very law whose constitutionality is impugned, the methodology applied by the Supreme Court in the Persons Case suggests that courts apply a presumption of membership in that class who is to benefit from the Charter, for the limited purpose of assessing the substantive Charter claim.
(3) No. Dr. H is a private party and not a government actor. Since the appellant did not establish that he was performing a government function or acting as a government agent, he does not owe any duty under the Charter to the appellant.
However, the Charter may nonetheless bear on legislation that imposes duties onto the respondent. The question then becomes whether the respondent’s legal obligations to the appellant were imposed by a statute, and whether that statute was unconstitutional. Section 35(2) of the Vital Statistics Act obligates the respondent to complete a medical certificate of death upon diagnosing someone as having died.
The appellant argued that the respondent ought not to have completed the medical certificate of death as the statute compelling him to do so violated her freedom of religion. This argument was not addressed by the application judge, and the Court decided not consider it for the first time on this “moot appeal”. The main issue before the application judge was the continuation of the appellant’s medical treatment. The judge decided that the constitutional status of the Vital Statistics Act, and the nature of a physician’s responsibilities under the Act, would be better left to a future case in which there was a proper record explaining how a physician’s duties to treat a patient are thought to flow from the physician’s statutory obligations.
(4) Yes. The Court held that the application judge erred in law with respect to s. 2(a) Charter rights analysis and Charter values methodology. In addition, the application judge made palpable and overriding errors of fact with respect to the appellant’s religious beliefs.
Charter Rights
Despite the fact that the record was sparse, the Court concluded that it was sufficient to establish that the appellant held the beliefs attributed to her by her father, that those beliefs were sincerely held, and that they had the requisite nexus with religion to come within the protection of s. 2(a) of the Charter.
The Court found that the more difficult question, given the state of the record, was whether these beliefs, and the practices associated with them, had been limited by legislation or the common law. That Court determined that this question was best left to a case in which the record related to the beliefs of the claimant was more fully developed.
The Court went on to discuss the s. 1 Oakes test analysis that follows a finding that the exercise of a s. 2(a) right has been limited. The Court found that there was no record on which to base a s. 1 analysis. Although the application judge speculated about floodgates, impacts on health care resources, and difficulties in administrating a regime of reasonable religious accommodation, the Court found that there was no evidence on which to make any findings in this regard.
With regard to the section 7 and 15(1) claims, the Court held that given that this was a moot appeal and that it was not possible to make the determination that is a necessary precondition to establishing either the s. 7 or s. 15(1) claims, it was inadvisable to engage in an adjudication of those claims.
Charter Values
The Court held that the application judge erred in this analysis, both with respect to common law and Charter values methodology generally, and specifically with respect to the application of freedom of religion and other relevant principles. The Court determined that the application judge’s formulation that a Charter value was “the value protected by s. 2(a) is the right to hold religious beliefs and manifest those beliefs without fear or coercion”, was simply a restatement of the scope of the Charter right and was not adequate.
The Court noted that given the deficiencies in the record, whether a common law rule should be crafted to provide accommodation for persons whose religious convictions cannot accept neurological criteria for death, is a question that must, ultimately, be left for another case. The Court would not, on this record in a moot appeal, attempt to determine whether such a change to the law was within the institutional capacity of courts to make incremental changes to the common law or is the type of far-reaching change that must be left to the legislature.
With regard to Charter methodology, the Court emphasized that Charter values are not Charter rights by another name or in a different setting; they are a different juridical concept. They do not extend the application of Charter rights by imposing Charter duties on private parties. Although they can supply a reason to change the common law, they cannot be used to invalidate legislation. Furthermore, the Court stated that there was no set list of Charter values, or canonical formulations of them.
(5) Not decided. The Court found that this was not an appropriate case to determine the jurisdiction of the Consent and Capacity Board. The Court determined that such a review should be by way of judicial review of an actual decision of the Board by the appropriate court.
Del Hugh Terrelonge v. CVC Ardellini Investments Inc., 2019 ONCA 811
[Sharpe, Hourigan and Jamal JJA]
Counsel:
A Schorr, for the appellant
L Ferreira and R Sparano, for the respondent
FACTS:
The appellant entered into a Forbearance Agreement with the respondent related to a $17 million mortgage secured against a hotel property. The appellant defaulted on the mortgage during the forbearance period and a dispute arose about whether the Forbearance Agreement entitled the respondent to the full value of $17 million, or $8.5 million, representing the portion of the loan that was payable upon maturity of the Forbearance Agreement. The respondent obtained a judgment against the appellant personally for approximately $8 million, possession of the appellant’s residence, and possession of the hotel, which was then sold for $9.5 million. The appellant brought a motion in which he took the position that the debt covered by the Forbearance Agreement was limited to $8.5 million, and therefore the proceeds of the hotel sale satisfied the debt and the respondent’s charge against the appellant’s residence should be discharged. The motion judge rejected this argument, and held that the appellant still owed at least $7 million to the respondent.
ISSUES:
(1) Did the motion judge err in mixed fact and law by interpreting the Forbearance Agreement as assigning the full $17 million?
(2) Did the motion judge err in law by determining that the court lacked jurisdiction to grant relief from forfeiture under s 98 of the Court of Justice Act?
HOLDING:
Appeal dismissed.
REASONING:
(1) No. There was nothing in the Forbearance Agreement that indicated the respondent was limited to recovering only $8.5 million on default. In addition, article 10 of the Forbearance Agreement provided for the reduction in the principle amount owing only if the appellant complied with its obligations under the agreement and paid the $8.5 million, plus interest and associated costs at the end of the forbearance period. That article would not have been necessary had the parties intended that the amount owing was limited to $8.5 million regardless of default. Furthermore, the Court found that while the motion judge was cognizant of the surrounding circumstances in the creation of the contract, he avoided impermissibly using them to effectively create a new agreement (Sattva Capital Corp. v Creson Moly Corp).
(2) No. Contrary to the appellant’s argument, the motion judge found that this was not an appropriate case to exercise his discretion to grant the relief from forfeiture sought under s 98. The transaction the parties agreed to was not unconscionable, and the result was not disproportionate.
Chong v. Donnelly, 2019 ONCA 799
[Sharpe, Hourigan and Jamal JJ.A.]
Counsel:
Christopher J. Haber, for the appellant
TC, self-represented
FACTS:
The parties in this case were governed by a court order that directed the children’s transitions between them. Transitions on a school day were take place at the school with the parent with whom the children would be with picking up the children. On a school day when the children were to be picked up by the respondent, the appellant picked up the children, fed them dinner, and returned them to school despite being advised by the respondent not to do so.
The motion judge found the appellant in contempt of the order, but imposed no penalty and awarded no costs. She did, however, encourage the parties to see a family mediator.
ISSUES:
(1) Did the motion judge err in finding the appellant in contempt?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes. The Court saw no basis to interfere with the motion judge’s finding that appellant had breached the terms of the order and that the three elements of civil contempt were established. However, the Court held that the motion judge erred in law by failing to consider whether she should exercise her discretion to decline to make a finding of contempt.
There was no indication that the motion judge considered whether a finding of contempt was a last resort or whether she considered any alternatives to such a finding. Nor did it appear that the motion judge considered the best interests of the children, which the Court has stated is the “paramount consideration” when the issue raised in the contempt motion concerns access to children: Ruffolo v. David, 2019 ONCA 385, at para. 19. It is in the best interests of the children to encourage professional assistance as an alternative to making a finding of contempt too readily. The Court held that the motion judge’s failure to consider these discretionary factors before making a finding of contempt was an error of law.
The Court noted that it is especially important for courts to consider the discretion to impose a contempt finding in high-conflict matrimonial cases such as this one. While it was proper to find that the appellant had breached the order, the Court stated that it was not in the interests of justice in the context of this case to add a formal order of contempt.
Bradfield v. Royal Sun Alliance Insurance Company of Canada, 2019 ONCA 800
[Doherty, Harvison Young and Thorburn JJA]
Counsel:
DV Abreu and MA Borgo, for the appellants
TJ McCarthy and SA Davies, for the respondent
FACTS:
The plaintiff/respondent JB, PL and the late SD were riding their motorcycles. SD was in front and drove onto the wrong side of the road and collided with JC’s automobile. JB did not hit JC’s automobile. SD was killed and JC was injured.
SD was insured by RSA under a standard motor vehicle policy with a $1 million limit. He had an M2 driver’s licence, which prohibited him from operating a motorcycle with any alcohol in his bloodstream. To do so, constituted a policy violation.
In the first action brought by JC, SD and JB were found liable for damages resulting from the motor vehicle accident. The issue of whether RSA was required to provide insurance coverage to SD was not determined.
In the second action, the trial judge was asked to determine whether RSA was entitled to take an off-coverage position and reduce the estate’s policy limit from $1 million to $200,000 after it learned that SD had been drinking before the accident, contrary to the terms of his insurance policy.
The trial judge held that RSA waived its right to rely on SD’s policy breach because RSA had taken its off-coverage position too late. He held that JB was entitled to recover judgment in the amount of $800,000 against RSA.
RSA claims that waiver requires actual knowledge of the breach and there was no actual knowledge of the breach in this case. There was also no clear waiver of the breach in writing as provided in s 131(1) of the Insurance Act. RSA further claims there can be no estoppel, as there was no knowledge of the breach until 2009, and there is no evidence the defence would have been conducted any differently had RSA taken an off-coverage position in 2006. Accordingly, there was no detrimental reliance.
ISSUES:
(1) Did the trial judge err in holding that RSA waived its right to deny coverage to the estate of JD?
(2) Did the trial judge err in holding that the issue of estoppel was moot?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes. Waiver requires knowledge of the policy breach. RSA had no actual knowledge that JD breached the policy by consuming alcohol before driving until 2009. RSA did not have all of the material facts from which to determine there was a policy breach and therefore knowledge could not be imputed. There is no evidence to support JB’s assertion that RSA knew of the policy breach but chose not to take possession of the information, namely JD’s blood alcohol level within the coroner’s report. The knowledge requirement is not whether the insurer could obtain the material facts but whether they did have the material facts necessary to enable them to know of the policy breach. Finally, there was not written waiver of the breach on the part of RSA, as required by s 131(1) of the Insurance Act.
(2) Yes. RSA is not estopped from asserting a breach of the policy, as RSA had no knowledge of the breach until 2009. Moreover, there was no evidence of detrimental reliance, which is an essential element of estoppel: Rosenblood Estate v Law Society of Upper Canada. The claim was issued in May 2008, the statement of defence was filed in March 2009, and the evidence as to alcohol consumption came to light in June 2009. Two weeks after discovering the evidence of alcohol consumption, RSA took an “off-coverage” position. RSA expended time, effort and money to investigate and defend the action until July 2009. There is no evidence that any of the steps taken by RSA to defend the case operated to prejudice the estate. On the contrary, the litigation administrator for the estate and JC’s counsel agreed there was no difference in the defence of the action whether RSA added itself as a statutory third party or was a defendant in the action. Thus, even if JB’s submission is that prejudice is presumed was correct, that presumption had been rebutted and there was therefore no detrimental reliance in this case.
Owen Sound (City) v. Naidal Incorporated, 2019 ONCA 804
[Sharpe, Hourigan and Jamal JJ.A.]
Counsel:
Ondrej Sabo, for the appellant
Errol Treslan, for the respondent
FACTS:
This appeal concerns the applicable scale of costs when a municipality unsuccessfully appeals an expropriation matter to the courts.
ISSUES:
(1) Did the Divisional Court err in law in assessing costs payable to the appellant?
HOLDING:
Appeal allowed.
REASONING:
(1) Yes. The appellant had relied on s. 32(1) of the Expropriations Act, which in relevant part requires the OMB to make an order “directing the statutory authority to pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable”. The Divisional Court declined to apply this provision and ruled that because this was a court proceeding rather than a proceeding before the OMB, the ordinary costs rules applied. The court found that the Divisional Court erred in law by not keeping “foremost in mind” the principle reflected in s. 32(1) — that the appellant was entitled to its reasonable legal, appraisal, and other costs actually incurred in resisting the respondent’s appeal to the Divisional Court.
Huron-Perth Children’s Aid Society v. JL, 2019 ONCA 809
[Lauwers, Fairburn and Zarnett JJ.A.]
Counsel:
Hugh R. Scher, for the appellant
Erica J. Baron, Christine Wadsworth and Leah Ostler, for the respondent
FACTS:
At trial, the trial judge determined that the four children of JL and DL were in need of protection pursuant to ss. 37(2)(b)(i) and (ii) of the Child and Family Services Act, RSO 1990, c C.11. An order for Crown wardship of all four children with no access to the parents was subsequently issued. On appeal of the Crown wardship order, the appeal judge granted the appeal of JL and DL in part, providing for access between the parents and children. JL and DL appeal the upholding of the now extended care order and seek an adjournment.
ISSUES:
(1) Is it appropriate to grant the adjournment request of JL and DL?
(a) Did the appeal judge fail take the fresh evidence into account?
(b) What are the children’s wishes?
(c) Did the appeal judge err in assessing the errors of fact allegedly made by the trial judge?
(d) Did the trial judge improperly consider a dated allegation of sexual impropriety against DL?
HOLDING:
Appeal dismissed.
REASONING:
(1) No. JL claims she received inappropriate text messages from two workers from the Children’s Aid Society which demonstrate that the Society workers have tried to intimidate her. The Society brought the issue to the police, asking for an investigation into what it asserts is fraud that has compromised its workers’ reputations. The matter has been ongoing for five years and there is no evidence regarding how long the police investigation will last. Whatever the result of the investigation, the complaint impugns only two of the fourteen total Society workers on the file, one of whom only recently became involved. Even if the investigation reveals the two Society workers to have sent the messages, it would not affect the outcome of the appeal.
(a) No. The appeal judge took all fresh evidence into account. Nothing about the fresh evidence persuaded her that it was in the best interests of the children to be returned to their parents.
(b) As part of its mandate, the Office of the Children’s Lawyer (“OCL”) has a duty to attend to the interests of children and may call evidence and make submissions on the behalf of children (Ludwig v. Ludwig, 2019 ONCA 680). The OCL provided an affidavit from a clinical agent which more than adequately identified that the children wished to remain living where they were.
(c) No. The appeal judge carefully considered each alleged error of fact and correctly applied the palpable and overriding error test. Though she found two errors, the appeal judge made no error in deciding that they were not overriding in nature.
(d) No. While the trial judge did mention the allegation, his reasons in no way turned on that issue. Moreover, the appeal judge specifically distanced herself from that information.
Adler v. Thomson, Rogers, 2019 ONCA 810
[Doherty, Miller and Paciocco JJ.A.]
Counsel:
Karen Zvylony, for the appellant
Robert Schipper, for the respondent
FACTS:
The Appellant brought an application for an assessment of 30 accounts (totaling over $600,000) he received from his counsel, Thomson Rogers, who represented him in a family law proceeding over the course of two and a half years. 26 of the accounts were paid in full by the Appellant. The four latest accounts were unpaid and challenged within 12 months.
The application judge held that the Appellant failed to establish that special circumstances existed warranting the assessment of the paid accounts. The application judge also declined to exercise his inherent jurisdiction to order an assessment of the unpaid accounts.
ISSUES:
(1) Did the application judge err by looking at the issue of special circumstances solely from the firm’s perspective?
(2) Did the application judge err by ignoring evidence and finding that the Appellant deliberately orchestrated the breakdown of the solicitor-client relationship?
(3) Did the application judge err by improperly exercising his inherent jurisdiction with regard to the unpaid accounts?
HOLDING:
Appeal dismissed.
REASONING:
(1) No. The Court held that the application judge properly articulated and applied the test for special circumstances. There was nothing in the application judge’s reasons to suggest that his analysis was undertaken only from the firm’s perspective. To the contrary, he conducted an exhaustive review of the record as it related to the parties’ conduct in the family law proceedings and their private relationship. The application judge considered the Appellant’s sophistication as a litigant and the fact that there was no evidence that the Appellant was dissatisfied with the accounts until near the end of the retainer.
(2) No. The Court held that the application judge’s factual findings were well rooted in the evidence, including his finding that the Appellant sabotaged his relationship with the firm in order to orchestrate an adjournment of the trial. Contrary to the Appellant’s argument, the analysis of the breakdown in the solicitor-client relationship was essential because it informed whether the breakdown was motivated by genuine concern about the firm’s service or the Appellant’s desire to adjourn the trial.
(3) No. As for the four unpaid accounts falling under the court’s inherent jurisdiction, the application judge noted that there were no circumstances, special or otherwise, warranting an assessment. With respect to these accounts, the Court was not satisfied that the application judge made any factual or legal error, or that he improperly exercised his inherent discretion.
CG Acquisition Inc. v P1 Consulting Inc., 2019 ONCA 745
[Doherty, Harvison Young and Thorburn JJ.A.]
Counsel:
Harvin D. Pitch and Adam Brunswick, for the appellant
Marc McLaren-Caux and Gerald Stobo, for the respondent P1 Consulting Inc.
Robin D. Linley, Erin Hoult and Justin Manoryk, for the respondent Liquor Control Board of Ontario
FACTS:
This was an appeal from an order allowing the respondents’ motion for summary judgment and dismissing the appellant’s action. The appellant accepts that this was a proper case for summary judgment, as well as accepts the facts found by the motion judge. The appellant argued that it was entitled to judgment on its damages claim. Two of the respondents issued a request for proposals (the “Sponsers”), the third respondent, P1 Consulting Inc. was retained as a fairness monitor. CG Acquisition Inc. (“CG”) filed a proposal which was disqualified on the basis that it listed an “ineligible person” as one of the project’s advisors. CG asked for a reconsideration of the proposal. The Sponsors agreed to reconsider, but ultimately declined to set aside the disqualification. The appellant argued that once the Sponsors undertook to reconsider the disqualification, they owed a duty of fairness to the appellant in the reconsideration decision.
ISSUES:
Did the motion judge err in his conclusion that the respondents acted reasonably in their reconsideration of the proposal?
HOLDING:
Appeal dismissed.
REASONING:
No. The motion judge concluded that the respondents did not owe a duty of care to the appellant on either a factual or legal basis. The Court accepted that the motion judge’s findings of fact justified a dismissal of the action against the respondents and dismissed the appeal on this basis. The Court did not decide on the issue of whether a duty of care was owed. In considering the appellant’s submission that P1 was not sufficiently involved in the request for reconsideration, the Court stated that there was no relationship of any kind between P1 and the appellant. P1 contracted to provide fairness monitoring services to the Sponsors. P1 had no decision-making power, no authority to provide legal or quasi legal advice, and no authority to evaluate in any way the merits of the various bids. The court concluded that the appellant got exactly what it had asked for – a reconsideration of the disqualification of the proposal. Furthermore, while P1 was not involved in the reconsideration of the proposal, P1 was ultimately in agreement with the Sponsor’s decision to disqualify the proposal.
CRIMINAL DECISIONS
R. v B., 2019 ONCA 797
[Watt, Huscroft and Jamal JJ.A.]
Counsel:
Howard L. Krongold, for the appellant
Elena C. Middelkamp, for the respondent
Keywords:
Criminal Law, Obstruction of Justice, Evidence, Alibi, R. v Cleghorn, [1995] 3 SCR 175, R. v Noble, [1997] 1 SCR 874, R. v Hogan (1982), 2 CCC (3d) 557 (Ont. CA), R. v Gagnon, 2006 SCC 17
R. v. S., 2019 ONCA 807
[Doherty, Pepall and Trotter JJ.A.]
Counsel:
Robert J. Reynolds, for the appellant
Caitlin Sharawy, for the respondent
Keywords:
Criminal Law, Sexual Assault, R. v Dinardo, 2008 SCC 24, R. v Vuradin, 2013 SCC 38, R. v Gagnon, 2006 SCC 17
R. v. W., 2019 ONCA 806
[Hourigan, Brown and Paciocco JJ.A.]
Counsel:
Howard L. Krongold, for the appellant
Elena C. Middelkamp, for the respondent
Keywords:
R. v. M.G., 2019 ONCA 796
[Watt, Huscroft and Jamal JJ.A.]
Counsel:
Philip Campbell and Alexander Ostroff, for the appellant
Michael Bernstein, for the respondent
Keywords:
Criminal Law, First Degree Murder, Evidence, Identification, Jury Charge, R. v Baltovich (2004), 73 O.R. (3d) 481 (C.A.), R. v John, 2017 ONCA 622, R. v Lawes (2006), 80 O.R. (3d) 192 (C.A.), Brouillard Also Known As Chatel v. The Queen, [1985] 1 S.C.R. 39
R. v M., 2019 ONCA 808
[Watt, Huscroft and Jamal JJ.A.]
Counsel:
Howard L. Krongold, for the appellant
Elena C. Middelkamp, for the respondent
Keywords:
Criminal Law, Criminal Harassment, Counselling Murder, Vetrovec Witness, R. v Vetrovec [1982] 1 SCR 811, R. v Bidawi, 2018 ONCA 698, R. v Shier, 2018 ONSC 5624
ONTARIO REVIEW BOARD
K. (Re), 2019 ONCA 802
[Juriansz, Pepall and Roberts JJ.A.]
Counsel:
Anita Szigeti, for the appellant
Sean Horgan, for the respondent
Attorney General of Ontario Kathryn Hunt, for the respondent, Centre for Addiction and Mental Health
Keywords:
Ontario Review Board, Not Criminally Responsible, Sexual Assault, Criminal Code, RSC 1985, Sheikh (Re), 2019 ONCA 692, Sim (Re), 2019 ONCA 719, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, R. v Owen, 2003 SCC 33
A. (Re), 2019 ONCA 812
[Strathy C.J.O., Doherty and Tulloch JJ.A.]
Counsel:
Michael Davies, for the appellant
Abdiaziz Abdulle Natalya Odorico, for the respondent
Her Majesty the Queen Marie-Pierre Pilon, for the respondent Brockville Mental Health Centre
Keywords:
Ontario Review Board, Not Criminally Responsible, Discharge, Marchese (Re) 2018 ONCA 307, Hahmoud (Re) 2018 ONCA 317, Carrick (re), 2015 ONCA 866
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