Good afternoon and Happy New Year!

It was another quiet holiday week at the Court of Appeal.

In Stokker v. Storoschuk, 2018 ONCA 2, the Court reaffirmed the proper legal test in Nissar v. Toronto Transit Commission, 2013 ONCA 361 for restoring an action that has been administratively dismissed for delay.

In Vancise v. Canada (Attorney General), 2018 ONCA 3, the appellant was compensated by the federal government under the Health of Animals Act for the loss of his cattle that were infected with anaplasmosis after he had imported infected cattle from the US.  The appellant then commenced an action against the government in negligence for not guarding against the importation of anaplasmosis. The motion judge dismissed the action on the basis that it was barred by s. 9 of the Crown Liability and Proceedings Act, which bars actions against the federal government when it has already provided compensation under a government program. The Court of Appeal upheld the motion judge’s decision.

Wishing everyone a warm and safe weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

http://www.blaney.com/lawyers/john-polyzogopoulos

 

Table of Contents

Stokker v. Storoschuk, 2018 ONCA 2

Keywords: Civil Procedure, Administrative Dismissal for Delay, Rules of Civil Procedure, Rule 48.11(b), 48.14, Nissar v. Toronto Transit Commission, 2013 ONCA 36, Gill v. Khindria, 2016 ONSC 5057

Vancise v. Canada (Attorney General), 2018 ONCA 3

Keywords:  Torts, Negligence, Crown Liability, Bar Against Double Recovery, Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, Section 9, Health of Animals Act, S.C. 1990, c. 21, Sections 51 and 53

For Criminal and Ontario Review Board Decisions Click Here.

 

Civil Decisions

Stokker v. Storoschuk, 2018 ONCA 2

[Laskin, Huscroft and Paciocco JJ.A.]

Counsel:

James Lawson, for the appellant

Christopher Lee, for the respondents

Keywords: Civil Procedure, Administrative Dismissal for Delay, Rules of Civil Procedure, Rule 48.11(b), 48.14, Nissar v. Toronto Transit Commission, 2013 ONCA 36, Gill v. Khindria, 2016 ONSC 5057

Facts:

Beginning in 2005, Mr. Stokker and Ms. Storoschuk were in a romantic relationship. Throughout their relationship, the parties were involved in a number of business transactions. Disagreements emerged over land and money. In 2007, Mr. Stokker, the appellant, sued the respondents, Ms. Storoschuk and her corporation, 1641516 Ontario Inc. Since then, the appellant’s lawsuit has languished. It was dismissed administratively twice for delay and then reinstated on consent. Three court-ordered timetables imposed on the appellant were not met.

In December 2015 the action had, once again, been removed from the list. The respondents, unaware of this, brought a motion under rule 48.14 of the Rules of Civil Procedure to have the appellant’s action dismissed for delay. The motion was adjourned for a short time. On the return date, March 17, 2016, the appellant was not called upon to show cause as to why his action should not be dismissed. Instead, the parties agreed to a fourth timetable, as well as a consent order under r. 48.14(4). The timetable set out a series of completion dates that the appellant would have to meet to ready the matter for trial. Clause 3 of the order provided that, “pursuant to Rule 48.14(1), the Registrar shall dismiss this action for delay with costs unless the action has been restored to the trial list on or before August 18, 2016.”

The appellant was late in performing some of the steps in the fourth timetable, but managed to complete the required tasks and to bring a rule 48.11(b) motion to reinstate the action before the August 18, 2016 deadline. The respondents opposed the motion, but the master reinstated the action to the trial list. The respondents appealed to a single judge of the Superior Court of Justice and the appeal was allowed. The appellant now comes before the Court of Appeal, arguing that the appeal judge erred in law in allowing the appeal.

Issues:

(1) Did the appeal judge err in allowing the appeal?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The parties agree that each level of court applied the proper legal test for restoring an action. In Nissar v. Toronto Transit Commission, 2013 ONCA 361, at para. 31, the court said: “The applicable test is conjunctive: a plaintiff bears the burden of demonstrating that there is an acceptable explanation for the delay in the litigation, and that, if the action was allowed to proceed, the defendant would suffer no non-compensable prejudice.”

The appeal judge held that the master erred in applying the first leg of the test by not considering the overall delay from the inception of the litigation. However, in the court’s view, the master was correct to give focus to the period following the March 17, 2016 consent order and timetable. Where delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation.

As was held in Gill v. Khindria, 2016 ONSC 5057, on a rule 48.11 motion, the court should only consider delay subsequent to a consent order withdrawing a motion to dismiss. The master did not err, therefore, in focusing on the period after the r. 48.14(4) consent order was made. Indeed, in this case there was no delay subsequent to the order, as the appellant had met the imposed deadline of August 18, 2016. The master was therefore correct to reinstate the action to the trial list. The order reinstating the action should not have been set aside.

Vancise v. Canada (Attorney General), 2018 ONCA 3

[Pepall, Benotto and Paciocco JJ.A.]

Counsel:

Teplitsky, for the appellant
W. Wright, for the respondents

Keywords:  Torts, Negligence, Crown Liability, Bar Against Double Recovery, Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, Section 9, Health of Animals Act, S.C. 1990, c. 21, Sections 51 and 53

Facts:

In 1996, the appellant imported four cattle from the United States which were later discovered to be infected with anaplasmosis. At the time, the Canadian government’s policy was to destroy any animals infected with anaplasmosis. Upon discovery of the condition of the four imported animals, the original herd was quarantined at the appellant’s farm by order of the respondents as an “infected place”. During quarantine, seven other cattle became infected and were destroyed. The rest were treated.

Under ss. 51 and 53 of the Health of Animals Act, the Minister exercised discretion to compensate the appellant for the value of the destroyed animals and the costs of eradication treatment for his herd.

In 2012, the appellant commenced the action that is the subject of this appeal against the respondents pleading negligence in not guarding against the importation of animals infected with anaplasmosis and in imposing inadequate quarantine on his farm. The respondent was granted a motion for summary judgment dismissing the appellant’s action on the basis that it was barred by s. 9 of the Crown Liability and Proceedings Act. The appellant appeals the decision of the motion judge.

Issues:

(1) Does Section 9 of the Crown Liability and Proceedings Act apply to bar the appellant’s action?

Holding:

Appeal dismissed.

Reasoning:

(1) Yes. Section 9 is not only a bar on double recovery. Its effect is to prevent actions for recovery where a government scheme has already provided a form of compensation in relation to the death, injury, damage or loss relied on in the action. This is so even where different heads of compensation are claimed. It also bars compensation that arises from “the same factual basis as the action”. The appellant has already been compensated by the respondents under ss. 51 and 53 of the Health of Animals Act.

Criminal Decisions

R v. Short, 2018 ONCA 1

[Hoy A.C.J.O., Doherty and Feldman JJ.A.]

Counsel:

Michael Dineen, Jennifer Micallef and Kristen Allen, for the appellant

Roger A. Pinnock, for the respondent

Keywords: Criminal Law, First Degree Murder, Third Party Suspects, Demeanour Evidence, Opinion Evidence, Hearsay, Appeal Allowed

R v. D.L.T., 2018 ONCA 4

[Sharpe, Watt and Roberts JJ.A.]

Counsel:

Yoni Rahamim, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Unlawful Confinement, Appeal Dismissed

R v. Nur, 2018 ONCA 8

[Sharpe, Watt and Roberts JJ.A.]

Counsel:

Yoni Rahamim, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Manslaughter, Evidence, Post-Offence Conduct, R. v. Hall, 2010 ONCA 724, Appeal Dismissed

 

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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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract and other business litigation, to estates and matrimonial litigation, and to debtor-creditor and insolvency litigation. John also represents amateur sports organizations in contentious matters and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.