Figueiras v. Toronto (Police Services Board), 2015 ONCA 208
[Rouleau, van Rensburg and Pardu JJ.A.]
K. Ardal and M. Klippenstein, for the appellant
K. A. McGivney and D. Hornich, for the respondents
C. Mainville and S. Walker, for the intervener the Canadian Civil Liberties Association
Canadian Charter of Rights and Freedoms, Freedom of Expression, Common law Right to Liberty, Right to Pass and Repass, Common Law Police Powers, R v. Waterfield, Stop and Search, G20
The day after riots erupted during the 2010 G20 summit in Toronto, the Applicant and his friends were on their way to an animal rights demonstration. Once they were one block north of the security fence surrounding the summit site, they were stopped by police officers, who told them that they would need to submit to a search of their bags if they were to proceed any further. The Applicant’s friends submitted, but the Applicant refused. One of the officers grabbed the Applicant by the shirt and said, “You don’t get a choice,” then pushed him away and said, “Get moving.”
These interactions were caught on video. The officers can be heard saying things like, “This ain’t Canada right now” and “There’s no civil rights here in this area.” The video also shows numerous other persons passing through unimpeded.
The Applicant returned home, abandoning his plans to demonstrate.
The Applicant sought a declaration that the police officers violated his rights under the Canadian Charter of Rights and Freedoms (the “Charter”), specifically, under s. 2(b) (freedom of expression), s. 2(c) (freedom of assembly) and s. 7 (liberty). The Applicant also sought a declaration that one of the officers committed battery by grabbing and pushing him.
The officer who grabbed the Applicant deposed that he and his team would stop anyone who looked like a demonstrator and demand that they submit to a search to ensure that they did not have any weapons. On cross-examination, he agreed that they were not instructed to adopt this tactic. There was no evidence that any other officers were also adopting this initiative.
The parties agreed that the officers had no statutory authority to demand that the Applicant consent to a search of his bag as a precondition to walk down a public street in the direction of his choosing. Therefore, the question before the application judge was whether the officers’ actions were authorized under the common law ancillary powers doctrine set out in R. v. Waterfield and resulting Canadian jurisprudence. If so, the parties agreed that the Applicant’s Charter rights could not have been breached.
The application judge dismissed the application, holding that the officers’ conduct was authorized under Waterfield. He analogized the exercise of these powers with the mandatory searches at courthouses or airports. The officers’ conduct in singling out demonstrators only made the interventions minimally intrusive, rather than making them an abuse of authority. With regards to the alleged battery, the application judge held that it was de minimis and authorized under section 25 of the Criminal Code (the “Code”), which permits a peace officer in the course of duty to use “as much force as is necessary,” provided that the officer acts on reasonable grounds and that the actions taken are authorized by law.
Having found the police conduct to be lawful, the application judge held that there could be no violation of the Applicant’s Charter rights.
(1) Did the application judge err in his application of the Waterfield test?
(2) Did the application judge err in concluding that the officer did not commit battery?
Appeal allowed. Declarations granted that:
(i) the officers infringed the Applicant’s freedom of expression under s. 2(b) of the Charter;
(ii) the officers infringed the Applicant’s and common law right to liberty; and
(iii) the officer committed a battery on the Applicant.
Given the agreement by counsel before the application judge, the Court followed the Waterfield analysis. It was not, however, immediately apparent that the conduct should not instead be analyzed under section 1 (and, in particular, the “prescribed by law” branch of the Oakes test) to analyze police infringement of Charter rights that do not contain internal limits, such as under ss. 2(b) (freedom of expression).
Before undertaking the Waterfield analysis, there were two threshold issues that needed to be addressed: (i) the police power at issue must be defined; and (ii) the liberty interests at stake must be identified.
Defining the Police Power
The power exercised by the officers in this case was not merely a power to control access to an area. Rather, it was a power to compel those entering an area to submit to a search, and to exclude those who refused. It was also a power that was being applied selectively, targeting only demonstrators. Therefore, the power exercised in this case was framed as follows:
“The power of individual police officers to target demonstrators, and, where no crime is being investigated or believed to be in progress, but with the intention of preventing crime, to require that they submit to a search if they wish to proceed on foot down a public street.”
Identifying the Liberty Interests at Stake
Although the Applicant requested declaratory relief based on his ss. 2(b), 2(c) and 7 Charter rights, the bulk of the application judge’s reasons focused on s. 9 (right not to be arbitrarily detained). The unusual situation presented in this case makes the task of identifying the Charter issues less straightforward than it appears from the application judge’s reasons. In the Court’s view, the police conduct in this case was a prima facie infringement of two liberties:
- freedom of expression under ss. 2(b) of the Charter; and
- the common law right to travel unimpeded down a public highway.
Freedom of Expression
The conduct at issue constituted a prima facie violation of the Application’s freedom of expression. Firstly, demonstrating is a well-established expressive activity. Secondly, neither the method nor the location of the Applicant’s intended activity conflicted with the values protected by ss. 2(b) – demonstrating around the G20 site, including the area adjacent to the security fence, was a perfectly lawful and reasonably expected activity. Lastly, the intention motivating the police conduct was to stop everyone who appeared to be exercising their freedom of expression and to impose an onerous condition upon them.
Having found a ss. 2(b) violation, there was no need to address the Applicant’s subsection 2(c) argument, as issues of freedom of assembly are subsumed by the ss. 2(b) analysis.
Common Law Liberty
Quite apart from s. 7 of the Charter, everyone has a common law right to liberty. The Applicant has established a prima facie infringement of the civil liberty to move unimpeded on a public highway, which includes a sidewalk. This right, often called the right of “pass and repass,” is part of a long common law tradition.
Courts should avoid constitutionalizing disputes if those disputes can be decided on the basis of common law principles. Therefore, there is no need to address the Applicant’s s. 7 argument.
Application of the Waterfield Test
(1) Yes, the application judge erred in his application of the second step of the Waterfield test – whether the infringement of the civil liberty was reasonably necessary for carrying out the particular police duty in light of all the circumstances. Having found that unlawful acts similar to those committed the previous day were “imminent” (though that finding was accepted only for the purpose of the within appeal), and that police had a duty to protect against their commission, the application judge did not adequately assess whether the police power exercised here and the resulting interference with the Applicant’s liberty were necessary for the performance of that duty.
In determining whether the exercise of the relevant police power is necessary to further a policy duty, the power invoked must be: (i) rationally connected to the risk sought to be managed; and (ii) it must be an effective means of materially reducing the likelihood of that risk occurring. These must be balanced with the degree of interference with the liberty interest.
The power invoked was not rationally connected to protecting against the imminent threat of another riot. It was not clear that the previous days’ violence was initiated by demonstrators only, as opposed to people who infiltrated and mixed into the groups of demonstrators. The lawlessness of the previous day occurred throughout the downtown core and did not involve the use of weapons capable of concealment in a backpack.
Nor was this power an effective means of controlling the risk of a repeat of the previous day. This team of officers was the only group invoking their power to stop and search demonstrators. Anyone turned back by this team could simply have taken an alternate route south to the security fence.
The application judge further erred in analogizing the selective searches to searches conducted at the entrances to courthouses and airports. The Court outlined four fundamental differences overlooked by the application judge.
The application judge erred in the way he approached the balancing exercise under Waterfield. When balancing the extent of police interference with an individual’s liberty, the court must have regard to the cumulative impact on all the individual’s liberty interests. The breaches of both the Applicant’s ss. 2(b) freedom of expression and common law right to liberty must be weighed in this balance, together. The application judge seemed to accept that the only relevant liberty interest was under s. 9 of the Charter. Further, by equating minimal impairment with minimizing the number of people affected, the application judge failed to consider whether the impact on those targeted by the police conduct could be minimized. Lastly, the application judge explicitly gave no weight to the words the officers used in exercising their powers. He ought to have considered that the officers’ remarks further undermined the reasonableness of their conduct and aggravated the harm to the Applicant’s liberty.
Based on the conclusion that the officers’ conduct was not prescribed by law, s. 1 of the Charter has no application and cannot be used to justify the breaches.
The Tort of Battery
(2) Yes. The officer’s contact with the Applicant, caught on video, was more than just a “de minimis” touching. It was the kind of unnecessary manhandling that would offend the dignity of a person and serve to intimidate that person. As a result, the elements of the tort of battery have been made out. The officer cannot rely on s. 25 of the Code as a defence because he did not possess common law authority for his actions and used more force than necessary.
G. Lipton Sales Ltd. v Sivitilli, 2015 ONCA 214
[Sharpe, Pepall and van Rensburg JJ.A.]
M.A. Handler, for the appellant
J.F. Finch and K. Arcuri, for the respondent
Civil Litigation, Summary Judgment, Endorsement
On May 5, 2014 Justice Belobaba granted summary judgment dismissing the claim against the respondents.
Did the motion judge err in granting summary judgment?
Appeal dismissed. Costs to the respondent fixed at $7,500, inclusive of disbursements and taxes.
No, there was no evidence that the respondent had any knowledge of the alleged fraud perpetrated by his son, or that he participated in the alleged fraud. The court found that the case against the respondent was entirely speculative in nature. In the circumstances, there was no triable issue. The court also found that the motion judge had not erred in his interpretation of the pleadings and there was no procedural error that could have affected the results.
O’Laughlin v. Byers, 2015 ONCA 210
[Sharpe, Pepall and van Rensburg JJ.A. ]
R. Isles, for the appellants
P.C. Card, for the respondent
Summary Judgment, Debtor-Creditor
This was an appeal from the judgment of Justice Guy P. DiTomaso of the Superior Court of Justice, dated November 3, 2014. The respondent provided evidence of a loan, an amortization schedule prepared by the appellants’ lawyer and a list account of payments received and demands made. The appellants admitted to the loan and the various payments made by cheque, but contended that additional payments were made by cash and cheque. The motion judge carefully analyzed the payments the respondent acknowledged having received and the payments the appellants contended were made, and found the appellants’ evidence was inadequate and granted summary judgment.
Did the motion judge err in granting summary judgment?
The appellants asserted that the motion judge erred in failing to consider evidence of the respondent’s income tax returns. The Court was not persuaded that this was overlooked or that it would have made any difference to the result. The court did not agree that the motion judge failed to consider the fact that the respondent dealt with certain financial aspects of the appellant Byers’ businesses. This fact was evident on the record but could not have been determinative of the issues.
Roberge v. Munro, 2015 ONCA 216
[Sharpe, Pepall and van Rensburg JJ.A.]
M.L. Roberge, in person
No one appearing for respondent, M. Munro
Civil Litigation, Endorsement, Assessment of Damages
The appellant noted the respondent, her former solicitor, in default and the matter proceeded for an assessment of damages. The appellant appealed the order of Carey J., for failing to award her any damages in the matter.
Did Carey J. err in awarding the appellant no damages?
The appeal was allowed and costs fixed in the total amount of $5,000 were awarded to the appellant for the appeal and the trial.
Yes. The appellant is entitled to judgment in the amount of $5,000, representing the amount of the retainer she paid to the respondent. Carey. J provided no explanation for why the appellant should not have judgment for this amount. The appellant has not demonstrated that she has suffered any other damages from the respondent’s actions. Her motion to introduce fresh evidence to demonstrate this is dismissed, because all of the evidence could have been obtained through reasonable diligence before the trial.
Cavic v. Costco Wholesale Canada Ltd., 2015 ONCA 215
[Sharpe, Pepall and van Rensburg JJ.A.]
M. Cavic, in person
M. Horvat and N. Shawn, for the respondent
Insurance Law, Credibility
The appellant explained why she submitted a claim for benefits under her employer’s health insurance plan in the name of the “phantom beneficiary”. The trial judge had heard the same and rejected it, favouring the evidence offered by the respondent.
The trial judge gave careful and detailed reasons explaining why she rejected the appellant’s evidence. It is for the trial judge to make findings of the credibility, not an appellate court.
Bennett v J.K. (Jim) Moore Ltd. (Jim Moore Petroleum), 2015 ONCA 217
[LaForme, Watt and Epstein JJ.A.]
D. Dewart and R. Liu, for the appellant
M. P. Forget, for the respondents David McComiskey and Monika McComiskey
Torts, Limitation Periods, Limitations Act, 2002, s. 5(1)(b)
An oil spill that was the basis for this action took place on March 30, 2009. The action was commenced against several defendants on March 7, 2011. The respondents, David and Monika McComiskey were not defendants to the action.
On June 5, 2010, Mr. McComiskey received a letter from Ms. Smith, a claims representative for the appellant’s insurer, putting him on notice that the latter held him responsible for the loss attributable to the spill. In a telephone conversation on July 29, 2010, Ms. Smith advised Ms. Sinclair, a claims representative for the McComiskeys’ insurer, that the claim against the McComiskeys was based on the fact that they previously owned the property and had performed renovations that may have resulted in the ruptured fuel lines that caused the spill.
In April 2014, the appellant moved to add the McComiskeys as defendants in the action. The motion judge dismissed the motion.
The appellant’s motion to add the McComiskeys as defendants was statute-barred by the Limitations Act, 2002. According to ss. 5(1)(b) of the Limitations Act, 2002, the limitation period starts to run when a reasonable person with the abilities and in the circumstances of the appellant, knew or ought to have known enough facts upon which to base an allegation of negligence. The unchallenged evidence of Ms. Sinclair was that as early as July 2010, the appellant was aware that she had a claim against the McComiskeys.
Costs were fixed at $15,000 inclusive of disbursements and taxes.
Hann v. GXS Canada Inc., 2015 ONCA 211
[Lauwers, Hourigan and Pardu JJ.A.]
A. Lublin and Ozlem Yucel, for the appellant
V. Woudenberg, for the respondents
Employment Law, Civil Procedure, Amendment of Pleadings, Payment in Lieu of Notice, Summary Judgment
Mark Hann appeals from an order awarding him summary judgment against his former employer, GXS Canada Inc., and its parent company.
The appellant was terminated after 34 years of employment with GXS. He assumed positions of greater and greater responsibility over his term of employment. At the time of termination, GXS had a Layoff Policy requiring it to give the appellant a lump sum of 81 weeks’ pay in lieu of notice, a job retraining allowance and other benefits. GXS did not comply with the Layoff Policy, and initially did not acknowledge that it existed. Instead, GXS provided the appellant with 52 weeks’ pay in lieu of notice, payable on a continuing basis over the following year rather than as a lump sum. The appellant sued, initially seeking damages for failure to comply with the Layoff Policy, and in the alternative, damages for wrongful dismissal based on failure to give reasonable notice of termination.
The appellant brought a motion for leave to amend his statement of claim to claim full common law damages for wrongful dismissal without reasonable notice, with damages claimed in the alternative for failure to comply with the Layoff Policy. The appellant submitted that, having repudiated the Layoff Policy, GSX was not entitled to rely on that policy to pay him a lower amount than he would have received based on his common law notice entitlement.
He also moved for summary judgment.
Did the motion judge err in failing to grant leave to amend his statement of claim and in failing to consider his primary claim for damages based on common law notice of termination?
No. Appeal dismissed.
On appeal, the court found there to be no basis to intervene in the motion judge’s decision. The parties came to an agreed statement of facts on the motion to amend/motion for summary judgment which read that: “the parties requested an endorsement that the Layoff Policy would be fully applicable to the plaintiff, and the defendant agreed not to oppose an award of complete indemnity costs to date in favour of the plaintiff.” The motion for judgment therefore essentially proceeded on consent or on an unopposed basis (the defendant had not filed responding materials). Therefore, the court saw no error in the motion judge making the order requested by both parties.
If the appellant wanted to pursue damages based on the common law reasonable notice period, he should have asserted that claim before the motion judge, rather than requesting the order that was made.
Lingard v. Milne-McIsaac, 2015 ONCA 213
[Lauwers, Hourigan and Pardu JJ.A.]
M. Dahab and N. Ghomashchi, for the appellant
J. K. Singh, for the respondent Wawanesa Insurance Company
Insurance Law, Uninsured Motorist Coverage, Limitation Periods, Discoverability
The appellant was rear-ended by another car in October 2008. The Motor Vehicle Accident Report (“MVAR”) listed Security National Insurance Company (“Security”) as the insurer for the owner, Mr. McIsaac, and Mr. McIsaac’s son as the driver.
The appellant brought an action against the McIsaacs in September 2010. In January 2011, Mr. McIsaac advised the appellant that, at the time of the accident, his son owned the vehicle and was likely insured by State Farm. Shortly thereafter, the appellant confirmed that Mr. McIsaac’s policy had been cancelled before the accident and that he still owned the vehicle at the time of the accident.
In February 2012, the appellant brought a motion for leave to amend his statement of claim to claim uninsured motorist coverage from his own insurer, Wawanesa. The motion judge denied the appellant leave, holding that the appellant did not act with due diligence in discovering the factual basis of his claims against the respondent. The motion judge found that the appellant ought to have taken “additional steps” by making inquiries with the insurers listed on the MVAR.
The motion judge erred in imposing a standard of reasonable diligence that was significantly higher than that imposed under prior case law.
The appellant brought the motion for leave well within the limitation period. The limitation period in respect of Wawanesa did not begin to run until January 2011, when the correspondence from Mr. McIsaac suggested that there may be a coverage issue, or alternatively, until February 2011, when lack of coverage was confirmed. It was reasonable for the appellant to assume that the police officer asked for proof of insurance when filling out the MVAR.
Wawanesa does not, and could not, claim prejudice in having to provide uninsured vehicle coverage to the appellant, which is precisely what he purchased from Wawanesa with his insurance premium/
Varajao v. Azish, 2015 ONCA 218
[Epstein, Pepall and Benotto JJ.A. ]
W. Greenspoon-Soer and D. Fenig, for the appellants
S. Rosen, for the respondent
Real Estate Law, Agreement of Purchase and Sale, Repudiation, Relief from Forfeiture
The appellants agreed to purchase a home from the respondent for $2.9 million. The agreement of purchase and sale set the closing date for Saturday, July 30, 2011, and time was of the essence. Neither party was ready to close on July 30, 2011. The appellants sought return of the $75,000 deposit. The trial judge found that the appellants had repudiated the agreement and were not entitled to the return of the deposit. She declined to grant relief from forfeiture.
(1) Did the trial judge err in finding that the appellant had repudiated the agreement?
(2) Did the trial judge err in refusing to grant relief from forfeiture?
(1) No. The appellants submitted that the respondent’s failure to close meant that he, not the appellants, repudiated the contract. However, the correspondence between the parties demonstrated that each side believed the contract remained in force. On August 4, the appellants decided not to proceed with the transaction. This finding of repudiation by the appellants was dispositive of the appeal.
(2) No. The trial judge correctly noted that in order to obtain relief from forfeiture the appellants were required to establish that i) the forfeited sum was out of proportion to the damages suffered; and ii) it would be unconscionable for the vendor to retain the money. Although the respondent did not suffer damages, the trial judge determined that it was not unconscionable for him to retain the deposit.
Astley v. Verdun, 2015 ONCA 225
[Simmons, Tulloch and Pardu JJ.A.]
E. Roberts, for the appellant
B.N. Radnoff, for the respondent
Civil Litigation, Contempt, Stay of Proceedings Pending Appeal
The Court set aside the motion judge’s order dismissing the motion for a stay of proceedings; set aside the order dismissing the appeal for delay; and varied the order for security for costs to $10,000.
The motion judge erred in concluding that the contempt finding and sentence under appeal was merely a do-over of the original contempt finding and sentence, and that Mr. Verdun’s appeal did not raise a serious question to be argued warranting consideration of a stay pending appeal. The contempt motion was premised on Mr. Verdun’s failure to comply fully with the terms of the conditional sentence he received on the first contempt motion. Pursuant to R v. Casey,  O.J. No. 71 (C.A.) ,there was an arguable issue concerning whether the motion judge was entitled to proceed by further contempt motion rather than invoking enforcement mechanisms for breach of a conditional sentence.
Furthermore, the length of the sentence imposed raised a serious question to be argued on appeal. With respect to the time served under the second conditional sentence, Mr. Verdun faced potential irreparable harm if a stay pending appeal was not granted.
The Court also held that the motion judge erred in finding that there was any potential prejudice in these circumstances to Mr. Astley. The second contempt motion was about ensuring Mr. Verdun fulfilled the terms of the conditional sentence imposed on the first contempt motion. Therefore, the balance of convenience favoured a stay.
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