The following are the Ontario Court of Appeal Summaries for the week of January 5-9, 2015. Noteworthy topics covered below include abuse of process, appellate procedure, negligence and expert evidence admissibility. A special mention to Blaney’s own Roger Horst and Rafal Szymanski for their positive result in Meady v. Greyhound Canada Transportation Corp. A job well done!
Ridel v. Cassin, 2015 ONCA 1
[Strathy C.J.O., Feldman and Lauwers JJ.A.]
P. Le Vay and N. Greckol-Herlich, for the appellants
P. Anisman, for the respondents
Keywords: Costs Endorsement
The parties agreed that the costs award made by the trial judge should be set aside and replaced with an order that the appellants/respondents by cross-appeal shall pay to the respondents costs in the amount of $355,000, plus disbursements and applicable taxes.
Tags: Costs Endorsement
1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5
[Pardu J.A. (In Chambers)]
J. Leclerc, for the moving party/responding party by way of cross-motion
D. Ronde and S. Holland, for the responding party/moving party by way of cross-motion
Keywords: Appellate Procedure, Notice of Appeal, Time for Filing, Extension of Time
This appeal arises from the summary dismissal of two common issues raised in this class proceeding, namely: (i) whether the defendant breached its contractual duty to the Class Members at any time during the Class Period by failing to share Volume Rebates with them; and (ii) if the defendant’s conduct did not constitute a breach of the Franchise Agreement, whether the defendant was unjustly enriched by such conduct.
The motion judge’s decision dismissing these two common issues was released on October 31, 2014. Due to an administrative error, 1250264 Ontario Inc. (“125”) made no effort to file its notice of appeal until December 10, 2014, when it was refused from filing because it was defective.
125 seeks an order: (i) extending the time to file its notice of appeal; and (ii) extending the time to perfect the appeal, so that appeals from related orders in this action can be dealt with at the same time as this appeal.
Pet Valu Canada Inc. (“Pet Valu”) brought a motion to strike the notice of appeal on the basis that the generic grounds of appeal give no hint of any alleged errors committed by the motion judge. If this appeal is permitted to proceed, Pet Valu seeks an order for security for costs on the ground that the appeal is frivolous and vexatious, and on the ground that 125 has insufficient assets to satisfy any judgment for costs.
Holding: 125’s motions to extend the time to file the notice of appeal and to extend the time to perfect the appeal is dismissed. Pet Valu’s motion is also dismissed as it is now moot.
The justice of the case does not require that an extension be given because, although very little is required in these circumstances to show that there is some basis for an appeal, there is no indication in 125’s materials that this appeal has merit. The affidavit filed in support of the motion is silent on the issue of merits, and the notice of appeal is so general that I am unable to construct any basis for an arguable appeal from the motion judge’s factual findings. The motion judge found that Pet Valu shared all the volume rebates with the franchisees. This factual conclusion is entitled to a high degree of deference. There is no hint of anything in the material before me that undermines that finding.
Tags: Appellate Procedure, Notice of Appeal, Time for Filing, Extension of Time
Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6
[Strathy C.J.O., Feldman and Pardu JJ.A]
P. Pape, D. Steinberg and C. Hacio, for the appellants
O. Smith and A. McBride for the respondents Greyhound Canada Transportation Corp. and Albert Arnold Dolph
R. Horst and R. Szymanski, for the respondents Constables Corey Parrish and Martin Singleton
Keywords: Civil Litigation, Negligence, Standard of Care, Bus Driver, Police Officer, Expert Evidence, Admissibility
On December 23, 2000, Shaun Davis, a passenger on a Greyhound bus, lunged at the driver and grabbed the steering wheel when the bus was in motion. The bus veered off the road and fell on its side, resulting in the death of 1 passenger and injuries to 32 others. Several passengers sued Greyhound, the bus driver, two OPP officers who had contact with Davis before he boarded the bus, their employer and Davis. The trial judge dismissed the action against all defendants, other than Davis. He found the plaintiffs failed to establish that a police officer in the circumstances would have prevented Davis from boarding the bus. He rejected the argument that the officers should have detained Davis under s. 17 of the Mental Health Act or using their powers of investigative detention. He also rejected the allegation that the OPP did not adequately train the officers to respond to people with mental illness. He found the plaintiffs had not established that the driver had failed to exercise reasonable care and skill in the operating of the bus or that Greyhound had failed to properly train him. The plaintiffs appealed that decision arguing the trial judge erred in excluding the evidence of two experts, specialists in police training and bus safety. In addition they argued the trial judge failed to adequately articulate the standard of care applicable to the respondents.
(1) Did the trial judge err in excluding Summerville’s expert evidence?
(2) Did the trial judge err in excluding Atkinson’s expert evidence?
(3) Did the trial judge err in failing to articulate the standard of care for each respondent?
Holding: Appeal dismissed.
(1) No, the trial judge made no error in excluding Summerville’s evidence. Instead he properly exercised his gatekeeper role by excluding unnecessary evidence. The court held that the exercise of police powers of investigation, arrest, detention and police interactions with the public falling short of coercion, are part of the daily experience of judges. Technical knowledge or expertise was not required to determine whether the OPP officers properly investigated Davis and whether they should have restrained him, diverted him or otherwise persuaded him not to board the bus. The police training materials were in evidence and used to cross-examine the OPP respondents. The trial judge did not require expert evidence to understand them.
(2) No, the trial judge reasonably concluded that expert evidence was unnecessary to resolve the allegations of negligence against the Greyhound respondents. The court found that there was ample evidence of Greyhound’s practices and procedures and the driver was cross-examined at length concerning compliance. The trial judge considered all of the breaches of the standard of care alleged by the plaintiffs. As the trial judge was not persuaded that the speed of the bus was unreasonable in the circumstances, it was unnecessary to consider whether the accident could have been avoided or the injuries reduced at a lower speed.
(3) No, the trial judge correctly identified the standard of care applicable to each defendant and applied it to the circumstances of the case. The court held he was not required to make broad pronouncements on the content of the duty of care of police officers or bus drivers. He was entitled to find that the respondents’ conduct did not fall below the standards identified by the appellants.
Tags: Civil Litigation, Negligence, Standard of Care, Bus Driver, Police Officer, Expert Evidence, Admissibility
Abarca v. Vargas, 2015 ONCA 4
[Laskin, Rouleau and Lauwers JJ.A.]
William G. Scott, for the appellants
George Kanellakos and Kevin Lasko, for the respondent
Keywords: Insurance, Motor Vehicle Accident, Abuse of Process, Underinsured, OPCF 44R Family Protection Coverage Endorsement
Facts: Jorge Leiva and Maria Leiva were passengers in Teodoro Abarca’s car when it collided with a car operated by Sandra Vargas. The coverage limit under Ms. Vargas’ policy with Wawanesa Mutual Insurance Company (“Wawanesa”) was $1,000,000. However, Wawanesa took an off-coverage position against Ms. Vargas on the basis that her licence was suspended when the accident occurred. If the off-coverage position is sustained at trial, Wawanesa’s insurance payment on Ms. Vargas’ behalf will be limited to $200,000.
The Leivas had an insurance policy with Economical Mutual Insurance Company (“Economical”) which included underinsured automobile coverage in the form of the OPCF 44R Family Protection Coverage Endorsement, which obliges Economical to respond if the defendant is underinsured.
The Leivas started a tort action against Ms. Vargas in Newmarket. In September 2010, counsel for the Leivas brought a motion in writing, without notice, for a court order granting leave to amend the Statement of Claim by adding Wawanesa and Economical as defendants. This would have allowed the Leivas to access the underinsured automobile coverage from Economical, if necessary. The potential applicability of the Limitations Act, 2002 to bar the claim against Economical was in issue because the accident had occurred in August 2007. In the notice of motion, counsel asserted that he relied on the Discoverability Rule, as his office only learned of Ms. Vargas’ licence suspension on March 22, 2010. Quinlan J. refused the Leivas’ motion, stating that the statutory limitation period, subject to discoverability, had expired. The motion judge ordered that the motion be brought in open Court on notice to the parties and defendants.
Counsel did not pursue the motion in the Newmarket action on notice to Wawanesa and Economical. Instead, he started a new action in Toronto on May 9, 2011. The Toronto Statement of Claim largely duplicated the Newmarket pleading, but added three parties.
Economical brought a motion to strike the Toronto Statement of Claim. Matheson J. found that it was an abuse of process for the Leivas to start a separate action in Toronto against Economical instead of bringing a motion on notice to add it as a defendant in the Newmarket action. She struck out the Leivas’ claim against Economical for underinsured automobile coverage, taking the view that the Court’s decision in Maynes v Allen-Vanguard Technologies was the ruling precedent. The Leivas appealed the ruling.
(1) Was failing to follow Quinlan J.’s direction to bring a motion in open court in Newmarket an abuse of process?
(2) Was starting the new action in Toronto an abuse of process?
(3) Was the penalty for abuse of process disproportionately prejudicial to the appellants?
(4) Were the interests of the parties appropriately balanced?
(5) Is Maynes the ruling precedent in this case?
Decision: Appeal granted
(1) Yes. Abuse of process cases commonly involve the use of the court’s process in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. The Court found that Matheson J. fairly took umbrage at what she considered to be counsel’s cavalier and recalcitrant attitude, which extended to his explanation for his actions She did not err in finding that the Leivas had abused the court’s process by failing to follow the direction set by Quinlan J.
(2) No. In cases involving two or more motor vehicles, the factual complexities can accumulate quickly. There are different parties and there can be different insurers, all of whom have a legitimate stake, and who are represented by different lawyers. This often leads to multiple lawsuits about the same set of occurrences. The Court found that it would have been appropriate, and, therefore, not abusive for the Leivas to start a new lawsuit against Economical alone in relation to the underinsured automobile coverage.
(3) Yes. Having found an abuse of process because the Leivas failed to follow the direction of Quinlan J., the next step was for Matheson J. to determine an appropriate remedy. There is no law supporting the conclusion that an abuse of process must lead inevitably to the dismissal of the associated claim. The court must assess the gravity of the abuse in determining the severity of the response, bearing in mind the principle of proportionality. The Court found the abuse of process to be minor. It found that in crafting the remedy, Matheson J. disregarded the impact of Economical’s possible limitation defence, failed to balance the technical procedural requirements of the Rules of Civil Procedure and the Courts of Justice Act in the interests of justice, and ordered a remedy that was not consistent with the consumer protection principle underlying automobile insurance.
(4) No. The Court held that Matheson J. made an error in principle by failing to fully consider and balance the parties’ competing interests in light of the degree of that abuse. The potential loss of coverage by operation of the limitation period could be catastrophic to the Leivas. In contrast, aside from the legal fees associated with the two proceedings, which could be compensated by a costs award, there was no real prejudice to Economical in being obliged to provide the underinsured insurance coverage for which the Leivas paid. The balance plainly favours the Leivas, not Economical, and the motion judge erred in failing to take this into account.
(5) No. The Court distinguished Maynes from this case on three bases. First, the Leivas sought relief from Economical that was distinct from that sought by the other defendants. Second, the Toronto action involved a claim against Economical, which was not named as a defendant in the original Newmarket action. The Leivas assert that the claim against Economical had not even been discovered at the time the Newmarket action was commenced. Third, there was a real possibility that the claim against Economical would be out of time if it were necessary to add it to the Newmarket action, a factor that would have had minimal significance in Maynes.
Tags: Insurance, Motor Vehicle Accident, Abuse of Process, Underinsured, OPCF 44R Family Protection Coverage Endorsement
[MacFarland, LaForme and Lauwers JJ.A.]
R. Lebi and S. Wahl, for the appellants, Ontario Sheet Metal Workers’ and Roofers’ Conference and International Brotherhood of Electrical Workers, Local 586\
A. J. Lenczner, Q.C., and M. D. Contini for the respondent, EllisDon Corporation
L. Marvy, for the respondent, Ontario Labour Relations Board
Facts: The Court of Appeal released a decision on November 17, 2014, allowing the appeal and restoring the decision of the Ontario Labour Relations Board. By letter, EllisDon questioned the intention of the Court of Appeal and asked whether EllisDon has two more years form the date of the Court of Appeal’s decision to obtain a legislative solution.
Reasoning: The two-year estoppel period originally set by the Ontario Labour Relations Board would start again on the date of the Court of Appeal’s decision.