Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Provincial Offences and Criminal Decisions | Ontario Review Board

Good evening.

Following are the summaries of this week’s civil decisions of the Court of Appeal for Ontario. This was an interesting week.

I would first like to congratulate two of our lawyers, Margaret Rintoul and Aly Virani, on their successful appeal in Kilitzoglou v. Cure. The Court followed the reasoning that has developed in the cases following Satva Corp. v. Creston Moly Corp. primarily in terms of clarifying the “factual matrix” that a judge may apply in the interpretation of a contract.  In this case, a rather broad interpretation by the trial judge of the facts surrounding the making of a domestic contract was held to be a flawed interpretation that contravened the actual language of the contract.  Overall, the message from the decision is a reaffirmation that the actual clear wording of a contract trumps the factual matrix and any speculation as to an intention contrary to the wording of a contract.


In Imeson v Maryvale (Maryvale Adolescent and Family Services), the Court delivered an important decision on the difference between the evidence of fact-witness experts who participated in the events in question, and experts brought in after the fact by counsel. The former do not need to comply with Rule 53 relating to the delivery of expert reports. The latter do. This case builds upon the Westerhof v Gee Estate decision relating to expert evidence. There is also an important discussion about the admissibility of expert evidence in the context of the Mohan/White Burgess tests of necessity and reliability.

The case itself was for liability for sexual assault. The plaintiff was successful at a jury trial, partly on the basis of the evidence of the doctor who had treated him. The doctor’s evidence recounting what the plaintiff had told the doctor about the abuse was admitted into evidence. Despite a hearsay warning given to the jury by the trial judge, there was a danger that the jury would rely on the doctor’s evidence to conclude that the plaintiff’s story was credible. The Court determined that the evidence should not have been admitted. The appeal was allowed and a new trial was ordered.

In Williams v Richard, the Court opened the door for a finding of social host liability on the specific facts of that case. The motion judge had dismissed the claim by way of summary judgment, relying on the leading social host liability decision of the Supreme Court in Childs v Desormeaux. The Court set aside that dismissal and sent the case to trial.

In York University v Markicevic, York University was successful in recovering severance paid to a former employee who it later discovered had misappropriated the University’s funds. The trial judge permitted York’s action and in the process, set aside releases exchanged between the parties when the severance was paid. The former employee had claimed that the action was statute-barred. The Court of Appeal dismissed his appeal.

In Apotex v Schering Corporation, the appellants’ patent had been upheld by a prior court decision in reliance on the “promise doctrine”. The patent was upheld before the Supreme Court effectively abolished the promise doctrine in its 2017 decision in AstraZeneca Canada Inc. v Apotex Inc. In this new action, Apotex was permitted to amend its defence to effectively re-litigate the validity of the patent because the promise doctrine is no longer the law in Canada. The Court stated that the doctrines of issue estoppel, collateral attack and abuse of process were flexible enough to permit a court to refuse to apply them in an appropriate situation. Where, as in this case, the law had changed from the time of the prior decision to the time of the new proceeding, the Court determined that it would be unjust not to permit the re-litigation of the validity of the patent.

Other topics covered this week included the duty of honest performance, constructive dismissal and adverse possession.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Kilitzoglou v. Curé, 2018 ONCA 891

Keywords: Family Law, Cohabitation Agreements, Contracts, Interpretation, Factual Matrix, Estates, Bad Faith, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888

Keywords: Torts, Sexual Assault, Civil Procedure, Evidence, Admissibility, Hearsay, Expert Opinion Evidence, Participant Expert Evidence, Jury Instructions, Rules of Civil Procedure, RRO 1990, Reg 194, r 53.03, Evidence Act, RSO 1990, c E.23, s 35, Westerhof v Gee Estate, 2015 ONCA 206, R v Mohan, [1994] 2 SCR 9, White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, R v Abbey, 2009 ONCA 624, R v Shafia, 2016 ONCA 812, Bruff-Murphy (Litigation guardian of) v Gunawardena, 2017 ONCA 502, R v Llorenz (2000), 145 CCC (3d) 535 (Ont CA), R v Marquard, [1993] 4 SCR 223

Williams v. Richard, 2018 ONCA 889

Keywords: Torts, Negligence, Host Liability, Duty of Care, Foreseeability, Proximity, Public Policy, Summary Judgment, Childs v Desormeaux, 2006 SCC 18, John v Flynn, 54 OR (3d) 774 (CA), Anns v Merton London Borough Council (197), [1978] AC 728, Cooper v Hobart, 2001 SCC 73, Odhavji Estate v Woodhouse, 2003 SCC 69

Apotex Inc. v. Schering Corporation, 2018 ONCA 890

Keywords: Intellectual Property, Patents, Promise Doctrine, Civil Procedure, Res Judicata, Issue Estoppel, Abuse of Process, Collateral Attack, Standard of Review, Patent Act, R.S.C. 1985, c. P-4, s. 62, AstraZeneca Canada Inc. v Apotex Inc., 2017 SCC 36, Housen v Nikolaisen, 2002 SCC 33, Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, Toronto (City) v C.U.P.E. Local 79, 2003 SCC 63, Minott v O’Shanter Development Co. (1999), 42 OR (3d) 321 (C.A.)

York University v. Markicevic, 2018 ONCA 893

Keywords: Contracts, Employment, Severance, Releases, Rescission, Fraud, Misrepresentation, Civil Procedure, Limitation Periods, Standard of Review, Limitations Act, 2002, S.O. 2002, c. 24, Schedule B,  Longo v. MacLaren Art Centre, 2014 ONCA 526

2279088 Ontario Inc. v. Nisbet, 2018 ONCA 897

Keywords: Real Property, Adverse Possession, Trespass, Masidon Investments Ltd. v. Ham (1984), 45 O.R. (3d) 563 (C.A.), leave to appeal refused, [1984] S.C.C.A. No. 232, Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (C.A.), Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, Weidelich v. de Koning, 2014 ONCA 736, Nelson (City) v. Mowatt, 2017 SCC 8, J. A. Pye (Oxford) Ltd. v. Graham, [2002] UKHL 30

CM Callow Inc. v. Zollinger, 2018 ONCA 896

Keywords: Contracts, Duty of Honest Performance, Bhasin v Hrynew, 2014 SCC 71, Mohamed v Information Systems Architects Inc., 2018 ONCA 428

Hampton Securities Limited v. Dean, 2018 ONSC 893

Keywords: Employment Law, Termination Without Cause, Constructive Dismissal,  Defamation, Qualified Privilege, Contracts, Enforceability, Punitive Damages, Costs, Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 SCR 3, Employment Standards Act, 2002, SO 2000, c 41

Short Civil Decisions

De Montigny v Roy, 2018 ONCA 884

Keywords: Labour Law, Civil Procedure, Striking Pleadings, Jurisdiction, No Reasonable Cause of Action, Weber v Ontario Hydro, [1995] 2 S.C.R. 929, Giorno v Pappas (1999), 42 O.R. (3d) 626 (C.A.)

Provincial Offences and Criminal Decisions

Northern Bruce Peninsula (Municipality) v. Dolson, 2018 ONCA 895

Keywords: Provincial Offences, Municipal Law, Building Code, Limitation Periods, Building Code Act, 1992, SO 1992, c 23, s 36(8), R v Pickles, [2004] OJ No 662 (CA)

R v. D.E. (Publication Ban), 2018 ONCA 883

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Evidence, The Rule in Browne v Dunn, R v Radcliffe, 2017 ONCA 176, Browne v Dunn (1893), 6 R. 67 (U.K.H.L.), Adverse Inference, R v Ellis, 2013 ONCA 9

R v. Lewin, 2018 ONCA 882

Keywords: Criminal Law, Child Abduction, Criminal Code, s. 282(1)

R v. Williams, 2018 ONCA 886

Keywords: Criminal Law, Controlled Drugs and Substances Act, s. 6(1), Criminal Code, s. 742.1(c), Sentencing

R v. Fells (Publication Ban), 2018 ONCA 881

Keywords: Criminal Law, Sexual Assault, Evidence, Corroboration

R v. Ludwig, 2018 ONCA 885

Keywords: Criminal Law, Arson, Intentionally or Recklessly Causing Damage by Fire to Dwelling House, Willfully and Without Lawful Cause Endangering a Dog, Mens Rea, Criminal Code, s. 434.1 and s. 433(a), Evidence, Burden of Proof, R. v. Greenwood (1864), 23 U.C.R. 250, R. v. Rothe, [1966] 4 C.C.C. 400, R. v. Chandroga [1999], O.J. No. 488

R v. Lopez-Restrepo, 2018 ONCA 887

Keywords: Criminal Law, Drug Offences, Delay, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Morin [1992], 1 S.C.R. 771, R v Faulkner, 2018 ONCA 174, R v T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, R v Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741

Ontario Review Board Appeals

Cardinal (Re), 2018 ONCA 892

Keywords: Ontario Review Board, Mental Illness, Danger to Public Safety


CIVIL DECISIONS

Kilitzoglou v. Curé, 2018 ONCA 891

[Juriansz, Brown and Huscroft JJ.A.]

Counsel:

M. Rintoul and A. Virani, for the appellants

L. Klug, for the respondent

Keywords: Family Law, Cohabitation Agreements, Contracts, Interpretation, Factual Matrix, Estates, Bad Faith, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

FActs:

The appellants were estate trustees of their late father’s Estate. The respondent was in a spousal relationship with the father and after 22 months of dating, the father made a down payment on a residence registered only in his name, but where they both  cohabited. The purchase was also financed by a mortgage, in the father’s name alone.

Thereafter, the respondent and the father signed a cohabitation agreement. The agreement entitled the respondent to stay in the residence following the father’s death for three years, provided she paid the sum of $140,000 to the father’s Estate. It additionally stipulated that if the respondent did not purchase the residence but wished to continue living there, she would have the option of paying a sum to the Estate and would thereafter pay the “ordinary and reasonable costs of maintaining the said residence from her own resources”. These words ultimately became the focus of the parties’ dispute. The father died suddenly in April 2007.

After a first trial concluded and a motion by the respondent to re-open that trial was dismissed, the respondent commenced a second action (leading to another trial and this appeal). The respondent sought a declaration that the appellants personally, and as trustees, were responsible for all mortgage payments and all capital expenses and improvements for the residence after the expiry of three years from the father’s death, and that her sole responsibility was limited to the ordinary and reasonable costs of maintaining the residence. She claimed that the capital expenses and improvements included “mortgage payments,property taxes, insurance and all other related operational costs.”

She also sought damages for reach of the cohabitation agreement, and exemplary and punitive damages. The appellants took the position that the respondent was responsible for all costs of the upkeep of the residence commencing on the third anniversary of the father’s death, and counterclaimed for payments made by the Estate relating to utilities, property taxes, insurance, and maintenance after the third anniversary of their father’s death.

Referring to the Supreme Court’s decision in Sattva Corp v Creston Moly Corp, the trial judge considered the surrounding circumstances of the cohabitation agreement. In his view, the relevant portion of the agreement supported the logical inference that the father wanted to care for the respondent for the rest of her life, provided she paid the Estate $140,000.  In essence, the trial judge’s finding that it was the father’s intention to take care of the respondent governed his entire interpretation of the cohabitation agreement.

Regarding realty taxes and insurance, the trial judge did not “think that it would be fair or reasonable to hold the Estate 100% liable [for the realty taxes], given that [the respondent] and the Estate are tenants in common in equal shares and because [the respondent] is the occupier enjoying exclusive use of the premises and land.” He apportioned the insurance premiums on the home on a 50/50 basis “to reflect the equity apportionment in the home.”

Regarding capital expenses, the trial judge concluded that the Estate was responsible for all capital costs and repairs commencing on the third anniversary of the father’s death. This would give effect to the father’s intention to take care of the respondent for the rest of her life. The trial judge granted the respondent judgment to cover a list of capital repairs, while also finding that other matters were part of the ordinary maintenance for which the respondent was responsible.

The trial judge refused the respondent’s request for a declaration that the Estate was bound to pay future capital expenses, indicating that he had no doubt that the estate trustees and the respondent would not be able to agree on whether an expense was capital or non-capital. Therefore, he ordered that if the parties could not agree, they should bring a “succinct” application.

The trial judge found bad faith on behalf of the respondents on the basis that they adopted “hardball” tactics by trying to force the respondent to sell the home, characterizing their conduct as “high handed and reprehensible”. He found the use of funds from the sale of the father’s cottage to pay legal counsel and to make a distribution to the beneficiaries improper. He further found that the disbursements from the father’s holding company breached an interlocutory order from the first trial restricting disbursements without a court order. He ordered the appellants to reimburse the Estate for money distributed to the beneficiaries and for the payments made to legal counsel.

Regarding the mortgage, the trial judge found that the father failed to insure the mortgage and his failure rested with the Estate to rectify. He ordered that the Estate pay the outstanding balance of the mortgage.

Regarding the Estate’s counterclaim, the trial judge found the Estate was entitled to recoup one half of the realty taxes, insurance and any maintenance costs it had paid after the third anniversary of the father’s death. He dismissed the remainder of the counterclaim.

Issues:

(1) Did the trial judge err in his determination and use of the factual matrix?

(2) Did the trial judge err in apportioning realty taxes in accordance with what he thought was “fair or reasonable”?

(3) Did the trial judge err in apportioning responsibility for capital repairs to the father’s house?

(4) Did the trial judge err in finding that the appellants acted in bad faith?

(5) Did the trial judge err in finding that the father was in violation of the cohabitation agreement by failing to obtain mortgage insurance, and that the appellants therefore improperly paid monies out of the estate while the mortgage was still outstanding?

(6) Did the trial judge err in concluding that the Estate could only recoup one half of the realty taxes and maintenance costs that it had paid after the third anniversary of the father’s death?

Holding:

Appeal allowed in part.

Reasoning:

(1) Yes. The trial judge erred by considering the respondent’s circumstances at the time of the father’s death, which should have had no bearing on interpreting the contract that had been negotiated and signed earlier. Second, the Court of Appeal found that the trial judge committed the more fundamental error of allowing the factual matrix to overwhelm the words of the contract, pointing to several terms of the agreement that, taken together, established a dominant theme of financial independence between the parties.

(2) Yes. The trial judge committed an error of law by failing to apportion the realty taxes and insurance according to the ordinary and grammatical meaning of the contract.

(3) Yes. First, the trial judge erred by entertaining the respondent’s claims on this issue in the first place, given that the trial judge in the first trial had already adjudicated them. Accordingly, the trial judge here should have found that res judicata applied. Second, the trial judge erred by failing to provide any basis for determining who would be responsible for future repairs, thus leaving the parties’ main dispute unresolved. The Court of Appeal again emphasized that the trial judge allowed the factual matrix – and in this case, a faulty factual matrix – to overwhelm the words of the contract. As a whole, the cohabitation agreement repeatedly emphasized the parties’ intentions to remain financially independent; the contract therefore should have been read in that light.

(4) Yes. Part of the basis for this finding was the appellants’ failure to make the capital repairs, but the Court of Appeal reiterated that the repairs relating to the period up to the third anniversary of the father’s death had already been adjudicated (with the respondent receiving an award in this respect), while the respondent was responsible for repairs after that date. Second, the trial judge’s finding was based on a mistaken belief that the appellants acted in contravention of an interlocutory non-dissipation order, when in fact that order had ceased to have effect. Lastly, the Court of Appeal rejected the trial judge’s finding that the appellants attempted to force the respondent to sell the residence, given that their position was consistent with the agreement. The orders coming out of this finding involving punitive damages, elevated costs and personal liability fell away. Costs at the trial and of the appeal were ordered payable to the respondents.

(5) No. The trial judge properly found that the father was in violation of the cohabitation agreement and that the Estate was duty-bound to pay the mortgage together with any arrears.

(6) Yes. In light of its analysis on the other issues, the Court of Appeal concluded that the respondent was liable to compensate the Estate for all ordinary and reasonable costs the Estate had paid to maintain the residence after the third anniversary of the father’s death, other than payment of the outstanding mortgage.

Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888

[Epstein, van Rensburg and Brown JJ.A.]

Counsel:

S.G. Ross and M. Rodrigues, for the appellant

L.P. Merritt and S. Dhanju-Dhillon, for the respondent

The appellant was found vicariously liable for sexual assaults alleged to have been committed against the respondent.  The respondent’s central witness was a mental health clinician (the “Doctor”).  The Doctor provided therapy to the respondent within a correctional institution for roughly three years before he discontinued therapy.  The Doctor took handwritten notes during treatment sessions.  In April 2016 and in anticipation of litigation, the respondent asked the Doctor to complete summaries of the notes (the “Reports”).  In accordance with the institution’s policies, the Doctor destroyed his handwritten notes after he published his summaries.

The Reports were not a verbatim record of the handwritten notes.  No session dates were specified.  The Reports summarized treatment sessions and included details of the history the respondent recounted about his family and childhood, the circumstances leading up to his time under the respondent’s care and foster care, the alleged sexual assaults, and the three murders that resulted in his convictions and imprisonment (the “Index Offence”).  The Reports also included a number of comments and opinions, as well as recommendations for future treatment.

The trial judge held a voir dire into the Doctor’s proposed evidence.  The respondent’s counsel indicated that she intended to lead the Doctor’s evidence, including the opinions expressed in the Reports, on the questions of liability (whether the sexual assaults occurred), causation (whether he suffered harm as a result), as well as damages.  The appellant’s counsel opposed the admission and asserted that the Doctor’s opinions went beyond those of a participant expert and did not meet the R v Mohan criteria.

The trial judge permitted the entirety of the Reports to be filed in evidence.  The trial judge concluded that the Doctor’s credentials and experience qualified him as an expert and that expertise as a mental health clinician was necessary to determine whether the respondent suffered psychological and emotional harm.  The trial judge concluded that the probative value of the Doctor’s evidence outweighed its prejudicial effect and noted that as participant expert, the Doctor’s evidence could be accepted without compliance with r 53.03 of the Rules of Civil Procedure.  In addition, the trial judge confirmed that the Doctor’s Reports were admitted under s 35 of the Evidence Act.

The trial judge cautioned the jury that any statements the respondent made to the Doctor were not to be taken as proof that the contents of the statements were true, but only that they were made (the “Hearsay Caution”).  The jury was provided with full copies of the Reports.  Three key opinions were elicited from the Doctor.  First, he described problems typical of childhood sexual abuse.  Second, he commented on childhood abandonment and abuse and their negative impact on the respondent.  Third, he opined that in his Index Offence, the respondent “re-experienced the sense of betrayal and rage that he felt toward his earlier abuser, and then acted with disinhibited, lethal violence” (collectively, the “Opinion Evidence”).

The Doctor was asked whether the respondent’s unconscious belief systems related back to his abuse as a child, at which point the trial judge cautioned that the Doctor could not speak to causation.  Appellant’s counsel objected.  The jury was not instructed to disregard any part of the Doctor’s evidence, nor did the trial judge provide a direction respecting the proper use of the evidence.  The trial judge solely reminded the jury of the Hearsay Caution.  In the jury charge, the trial judge mentioned that the jury heard evidence about the plaintiff’s behavior while under the respondent’s care and following, “including the observations and opinions expressed by [the Doctor].”  Appellant’s counsel objected to this reference and argued that the jury could not consider the Doctor’s observations and opinions in determining whether the sexual assaults had occurred.  The reference was not removed.

Issues:

(1) Did the trial judge err in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under Westerhof v Gee (“Westerhof”)?

(2) Did the trial judge err in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under R v Mohan (“Mohan”) and White Burgess Langille Inman v Abbott and Haliburton Co (“White Burgess”)?

Holding:

Appeal allowed.

Reasoning:

(1) Yes, the trial judge erred in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under Westerhof.  The trial judge admitted opinion evidence that exceeded the scope of proper opinions to be offered by a participant expert by admitting unredacted Reports into evidence and permitting the Doctor to testify about anything that was contained in the Reports.  The trial judge failed to carefully examine the opinions included in the Reports and the purpose for which they were offered for the jury’s consideration.

Participant experts may give opinion evidence without complying with r 53.03 of the Rules of Civil Procedure.  The Court of Appeal in Westerhof explained that a participant expert may give opinion evidence where “the opinion to be given is based on the witness’s observation of or participation in the events at issue; and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.”  Any opinion evidence beyond these limits must comply with r 53.03.

There was no review of the specific opinions or the contents of the Reports during the admissibility voir dire.  The trial judge permitted the Doctor to testify about anything that was contained in the Reports, without exception.  The trial judge did not focus on the opinions in the Reports or whether any or all of the contents of the Reports exceeded the scope of proper opinions to be offered by a participant expert.

It was appropriate for the Doctor as participant expert to provide evidence about the respondent’s mental condition, the treatment that was provided, the respondent’s response to treatment, and the therapy recommendations.  However, the appropriateness of giving evidence on these matters does not make the Doctor’s unredacted Reports admissible, and allow him to testify on anything contained in the Reports.

The circumstances surrounding the Reports blurred the role of the Doctor.  The nature of the opinions provided and the purpose for which they were being led should have been considered.  The Doctor completed the Reports roughly a year after the respondent discontinued therapy.  Thematic connections were made in the Reports that were not present in the handwritten notes.  The Doctor knew that the respondent commenced litigation.

The Doctor’s Opinion Evidence included evidence which fell outside the proper scope of evidence tendered by a participant expert as instructed by Westerhof.  The opinion offered by the Doctor that sought to draw a causal link between the alleged sexual assaults and the respondent’s later behavior was not based on his skill, knowledge, training and experience.  The opinion as to the problems typical of childhood survivors of sexual abuse was not based on his observation of, or treatment of, the respondent.  Thus, these opinions went beyond the proper scope of any opinion that could have been provided as a participant expert.

(2) Yes, the trial judge erred in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under Mohan/White Burgess.  The trial judge correctly noted that participant witnesses are subject to the Mohan/White Burgess test for the admissibility of expert evidence.  The trial judge erred in failing to apply the Mohan/White Burgess criteria to the Doctor’s specific opinions.

The first step to determining admissibility of an expert’s opinion evidence is to identify the substance and scope of an expert’s opinion.  The trial judge failed to consider the specific opinions to be proffered.  Mohan/White Burgess ought to have been applied with the particular opinions in mind, as well as their intended use.

As for the threshold requirements that Mohan/White Burgess mandate, the Doctor’s evidence was not necessary to the question of whether the sexual assaults occurred.  This depended on an assessment of credibility.  There was no need for expert evidence to help the jury decide whether the respondent was credible.  The Doctor’s evidence which linked the respondent’s subsequent conduct to the alleged sexual abuse could not have been essential to assisting the jury since the Doctor was not qualified to give such evidence.  None of the Doctor’s qualifications demonstrated an expertise in sexual abuse.  He was neither qualified to offer an opinion about the problems typical of survivors of sexual abuse, nor the relationship between the alleged sexual assaults and the respondent’s subsequent difficulties, including the commission of his first murder.

As for the gatekeeping role under the second component of the Mohan/White Burgess criteria, the trial judge ought to have assessed the benefits of admitting the evidence against its potential risks.  The Doctor’s Opinion Evidence carried a number of risks.  One such risk was that the jury could conclude that the Doctor’s testimony was proof of the truth of the respondent’s narrative.  This was addressed with the Hearsay Caution.  However, other risks were present.

First, there was a danger that the Doctor’s evidence would usurp the jury’s function of deciding credibility.  Second, the jury had before it unedited and unredacted Reports which contained a great deal of irrelevant material and contained tremendous oath-helping potential.  The trial judge failed to weigh all the risks against the possible benefits, or consider how the risks might have been mitigated other than through the Hearsay Caution.  The Hearsay Caution was insufficient to address the various risks.

In the result, the appeal was allowed and a new trial ordered.

Williams v. Richard, 2018 ONCA 889

[Hourigan, Miller and Trotter JJ.A.]

Counsel:

P. Brown and W. Harding, for the appellants

B. Smith, for the respondents

Facts:

The appellant MW and the respondent JR were colleagues and friends who regularly got together to drink beer after work. They did this often enough that they had a pact to call the police if one of them was going to drive intoxicated with children in the car. One evening, MW consumed approximately 15 cans of beer at the home of JR’s mother. JR knew that MW was in no condition to drive, and became aware of his intention to drive the babysitter home with his children in the car. JR threatened to call the police if MW decided to drive, but did not do so until sometime after MW had already left the house.

MW went home (which was 500 metres down the street), loaded his children and babysitter into the car, and drove the babysitter home. After dropping off the babysitter and on his way back home, he was involved in a serious car accident which resulted in his death, and injuries to his children.

The appellants are the wife and children of the deceased MW, and have brought two actions alleging that the respondents, JR and his mother, breached their duty of care as social hosts. The first action is for damages for injuries sustained by the children, and the second action is for damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

Both of the actions brought by the appellants were dismissed by way of summary judgment. The motion judge relied on Childs v. Desormeaux, 2006 SCC 18 (“Childs”) and John v. Flynn, 54 O.R. (3d) 774 (C.A.) (“John”) to conclude that the requisite duty of care had not been established. Further, the motion judge held that even if the duty of care had been established, it would have ended when MW arrived at home to pick up the babysitter.

Issues:

(1) Did the motion judge err in her duty of care analysis regarding foreseeability and proximity?

(2) Did the motion judge err in her reliance on John?

(3) Should the Court consider the issues of whether any residual policy considerations suggest a duty of care should not exist, and whether the respondents met the applicable standard of care?

Holding:

Appeal allowed.

Reasoning:

(1) Yes.

The outcome in Childs, the leading case in Canada regarding social host liability, rested on foreseeability and proximity. In terms of foreseeability, the Court was concerned with the social host’s failure to stop the intoxicated person from driving. To determine whether the plaintiff should have taken action, the plaintiff had the onus of establishing foreseeability of harm and other aspects of the relationship between the plaintiff and defendant that created a “special link” or proximity. It is not enough to simply hold a house party where alcohol is served to establish this special link.

Since the Childs decision, courts have determined foreseeability based on an analysis of the host’s knowledge of a guest’s intoxication, or future plans to engage in a potentially dangerous activity that subsequently causes harm. In the context of summary judgment motions, some courts have held that the presence of conflicting evidence about the level of a host’s knowledge of a guest’s intoxication is enough to take the action to trial. However, other courts have granted summary judgment.

Courts have determined the proximity analysis since the Childs decision based on an analysis of whether the host was inviting the guest to an inherently risky environment, or whether there was a paternalistic relationship between the parties. Courts have used the following non-exhaustive factors to determine whether a social gathering is an inherently risky environment: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring such as underage drinking or drug use.

A duty of care analysis in the context of a social host should consist of three elements: 1) whether the injury was reasonably foreseeable; 2) whether there is sufficient proximity such that there is a duty to act; and, 3) whether the duty of care is negated by policy considerations. If the first two elements are satisfied, a prima facie duty of care has been established.

The motion judge did not follow this duty of care analysis, quickly determining the issues of foreseeability and proximity. For JR’s mother, the motion judge found that there was not enough evidence to establish foreseeability, and there were none of the features in the relationship to establish proximity. For JR, the motion judge found that foreseeability had been established because JR knew MW intended to drive to his home. Then the motion judge found that proximity had not been established because house parties where alcohol is served are not unusually risky, and party hosts do not have a paternalistic relationship with their guests.

The motion judge erred in her foreseeability and proximity analysis for both JR and his mother. Regarding the foreseeability analysis for JR, there is enough conflicting evidence about whether the risk was reasonably foreseeable to send the action to trial. Regarding proximity, this case is distinguishable from a large social gathering. This was two men engaging in a developed pattern of behaviour by drinking heavily in a garage, who even had a pact as to what to do in the event that one of them drove children after drinking. Further, the motion judge failed to consider that a host who continues to serve alcohol to a visibly inebriated person knowing they will be driving home is sufficient to give rise to a prima facie duty of care.

Regarding the foreseeability analysis for JR’s mother, the motion judge erred in finding that there was no evidence that JR’s mother knew MW would be driving while intoxicated. This is because there was conflicting evidence on that point. Regarding proximity, the awareness of JR’s mother of the general pact between JR and MW, that MW was heavily drinking on her property, and her knowledge of his intention to drive, may give rise to a duty of care. This potential duty of care creates a genuine issue requiring a trial.

(2) Yes.

The motion judge relied on a proposition from John to hold that even if the respondents owed a duty of care to MW, the duty of care expired once MW arrived at his home. The facts of John are distinguishable from this case. The individual defendant in John was an employee who had been drinking steadily before work, and was drinking during his breaks at work. The corporate defendant, who was the employer of the employee, did not provide the employee with any alcohol. The Court in John found in obiter that in the circumstances, if a duty of care existed between the employer and the employee, it would have ended when the employee returned home. This proposition from John does not extend to all circumstances. Accordingly, the motion judge erred in relying on this proposition from John.

(3) No, these issues should not be considered by the Court. Policy considerations are best addressed after a duty of care has been found to exist.

Apotex Inc. v. Schering Corporation, 2018 ONCA 890

[Strathy C.J.O., Nordheimer J.A. and McKinnon J. (ad hoc)]

Counsel:

G. Gaikis and L. Ing, for the appellants, Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH and Sanofi-Aventis Canada Inc.

M. Richard, for the appellant, Schering Corporation

N. De Luca and D. Cappe, for the respondent

Keywords: Intellectual Property, Patents, Promise Doctrine, Civil Procedure, Res Judicata, Issue Estoppel, Abuse of Process, Collateral Attack, Standard of Review, Patent Act, R.S.C. 1985, c. P-4, s. 62, AstraZeneca Canada Inc. v Apotex Inc., 2017 SCC 36, Housen v Nikolaisen, 2002 SCC 33, Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, Toronto (City) v C.U.P.E. Local 79, 2003 SCC 63, Minott v O’Shanter Development Co. (1999), 42 OR (3d) 321 (C.A.)

Facts:

After a series of patent disputes with the appellants, the respondent received regulatory approval and entered the market with a generic version of a drug that was subject to a number of patents held by the appellants. The appellants sued the respondent, and the Federal Court of Canada applied the “promise doctrine” to find that one of these patents was invalid (the “Invalidity Decision”). The Federal Court of Appeal upheld the Invalidity Decision.

The respondent commenced the action underlying this appeal for damages against the appellants under multiple statutes, but before it was set down for trial the Supreme Court of Canada released its decision in AstraZeneca Canada Inc. v Apotex Inc., 2017 SCC 36, which struck down the promise doctrine. The promise doctrine required a review of the entire specifications, including the patent’s claims and disclosure, to identify all promises of utility. If any identified promise of utility was not fulfilled, then the utility requirement was not met and the patent was declared to be invalid in its entirety. The Supreme Court rejected this approach, finding that a single use related to the nature of the subject-matter was sufficient to demonstrate utility and, in proving utility, even a scintilla of utility will suffice.

As a result of this decision, the appellants said that the Invalidity Decision was fundamentally flawed and moved to amend their statements of defence in the underlying action. The motion judge found that, although the respondent would suffer no non-compensable prejudice, the proposed amendments ran afoul of issue estoppel because they would inevitably require the entire re-litigation of the validity of the patent. The motion judge found that the “special circumstances” exception to issue estoppel did not apply, as there was no change in the law. The motion judge also found that the Invalidity Decision was valid and binding and could not be the subject of a collateral attack in another proceeding.

Issues:

(1) Did the motion judge err in denying leave to amend the statements of defence based on issue estoppel?

(2) Did the motion judge err in denying leave to amend the statements of defence based on the doctrine of collateral attack?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The strict application of issue estoppel would work an injustice on the appellants, and justice requires that the appellants be able to argue that a prior conclusion regarding the patent is no longer a valid conclusion in light of changes in the law. First, the Court of Appeal stated that the scope of the “special circumstances” exception is a question of law and the standard of review is one of correctness per Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para. 8.

Second, the Court stated that the requirements of, and the purpose behind, the doctrine of res judicata were canvassed in Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 (“Danyluk”). The Court of Appeal found that the three preconditions to the operation of issue estoppel were present in this case, but the decision in Danyluk also said that a court retained discretion not to apply the doctrine where to do so would work an injustice. The Supreme Court in Danyluk also said that the objective of issue estoppel is to ensure the orderly administration of justice but not at the cost of real injustice in the particular case, and that a court should take into account the entirety of the circumstances in weighing this. The Court of Appeal also reiterated the observation of Laskin J.A. in Minott v O’Shanter Development Co. (1999), 42 OR (3d) 321 (C.A.) (“Minott”) that if a decision of a court on a point of law in an earlier proceeding is shown to be wrong by a later judicial decision, issue estoppel would not prevent re-litigating the issue because it would be unfair to do otherwise.

The Court of Appeal found that the motion judge erred in adopting a narrow view of what constitutes a change in the law in determining whether or not the court had discretion not to apply issue estoppel. A change in the law is not limited just to a change in a statutory provision, and Laskin J.A. in Minott specifically noted that a change in the law included a decision of a court “on a point of law”. The Court of Appeal found that there was a decision of a court on a point of law at issue in this case. Based on the entirety of the circumstances and the centrality of the Invalidity Decision to the underlying action, the motion judge’s decision would work an injustice by not allowing the statements of defence to be amended to argue that the Invalidity Decision was suspect. Additionally, the respondent’s effort to advance a novel claim with extraordinary damages in bringing the underlying action meant that the respondent was the one effectively raising the validity of the patent for a second time. Finally, the Court of Appeal noted that there was nothing in s. 62 of the Patent Act, R.S.C. 1985, c. P-4 that would override the proper application of the special circumstances exception.

(2) Yes. Collateral attack would work the same injustice as issue estoppel and should not be applied to block the proposed proceedings. The Supreme Court of Canada in Toronto (City) v C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 described issue estoppel and collateral attack as particular applications of the broader doctrine of abuse of process, and that the discretionary factors applying to prevent issue estoppel from operating in an unjust or unfair way were equally available to prevent the doctrine of collateral attack from doing the same.

York University v. Markicevic, 2018 ONCA 893

[Feldman, Pepall and Pardu JJ.A.]

Counsel:

J. Spotswood and D. Zacks, for the appellant

W.C. McDowell, B. Kolenda and L. Hogg, for the respondent

Facts:

The appellant misappropriated nearly a million dollars from York University (“York”). At the time, he was the Assistant Vice President of Campus Services and Building Operations. Between 2007 and 2009, he devised a scheme to falsely invoice York for work that was not actually done at the university. York paid $374,983.50 for these invoices and the appellant and his co-conspirators pocketed the cash.

On February 1, 2010, before York was aware of the extent of the appellant’s dishonesty, it terminated the appellant’s employment without cause and negotiated and finalized a severance agreement with him that contained mutual releases. During those negotiations, the appellant denied any wrongdoing. York agreed to pay him 36 months’ gross salary, amounting to $696,166. The appellant’s continued employment had become untenable because York had to conduct an investigation into the rumours circulating about his financial impropriety and because of the complaints concerning his bullying behaviour.

As a result of the investigations undertaken after the appellant’s departure, York learned of the full extent of the appellant’s misconduct and sued to set aside the releases, recover the money stolen, and for repayment of the severance package. York issued the Statement of Claim on January 26, 2012. Following a 25-day trial, the trial judge found in favour of York and rescinded the severance agreement including the releases. The trial judge made a factual finding that January 29, 2010, was the earliest date York could have discovered its potential claim and, accordingly, its claim was not barred by the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Act”).

Issues:

(1) Did the trial judge err in concluding that the appellant’s misrepresentations of innocence induced York to enter into the severance agreement and to release the appellant from any claims York might have against him?

(2) Did the trial judge err in concluding that York’s claim was not barred by the Act?

(3) Did the trial judge err in concluding that York did not waive its claim against the appellant despite the broadness of the language in the mutual release?

(4) Did the trial judge err in concluding that a fiduciary, like the appellant, was bound to look after York’s interests while negotiating the severance agreement?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The allegations of the appellant’s misfeasance came to light when several employees spoke to York’s Director of Human Rights (the “Director”), who later met with the York’s President to discuss the allegations on December 17, 2009. By January 27, 2010, the appellant had heard of the circulation of rumours that he was having work done on his personal residences by York employees. He attributed these suggestions to animus on the part of the union for York tradespersons and in a letter copied to his supervisor, described the allegations as unfounded, libelous, slanderous and “completely in line with previous unfounded accusations” emanating from the union. On January 28, 2010, the appellant wrote to his supervisor, York’s counsel, and York’s President, responding vigorously, and denying the rumours. On January 29, 2010, counsel for York met with one of the whistleblowers who had made allegations against the appellant. The whistleblower was prepared to sign a statement and also provide documents to support the allegations of financial misfeasance by the appellant.

A contracting party who is induced to enter into a contract as a result of a fraudulent misrepresentation is entitled to rescission, and restoration of the benefits conferred on the other party to the contract: S.M. Waddams, The Law of Contracts, 7th ed. (Toronto: Thomson Reuters, 2017), at para. 421. The question of whether a contracting party did in fact rely on the misrepresentation, at least in part, to enter into the contract is “a question of fact to be inferred from all the circumstances of the case and evidence at the trial”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 291. The trial judge’s finding that York was induced to enter into the severance agreement by the appellant’s fraudulent misrepresentation that he was innocent of any financial dishonesty was supported by the evidence and no palpable or overriding error was shown. The Court of Appeal found it difficult to imagine a circumstance in which an employer, acting responsibly, would pay three years’ severanceto an employee it knew had misappropriated large sums of money from it.

(2) No. The question of whether a claim was discovered and the limitation period triggered is a question of mixed fact and law entitled to deference absent palpable and overriding error: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 38. As indicated in Longo, at para. 44, certainty of a potential defendant’s responsibility for an act that caused the loss is not required. Rather, what is required are prima facie grounds to infer that the defendant did the act that caused the loss.

The appellant argued that the trial judge focused only on the date on which York knew that the loss had occurred, and that she did not consider that section 5(1) of the Act required her to consider the earliest of two dates: the date York knew the loss had occurred, and the date on which “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of the loss. The Court of Appeal disagreed with the appellant’s position. Consideration of both branches of this test was implicit in the trial judge’s articulation of the appellant’s argument at trial that “York cannot meet its burden of proving that it did not know, or could not have known with reasonable diligence, of the facts giving rise to the claim”.

The appellant further argued that York knew it had a claim against the appellant as early as December 17, 2009, when the Director informed York’s President of the allegations by several employees, and at the latest, when the Director went to the President on January 19, 2010, to report in general terms, the allegations reported to him about financial misfeasance by the appellant. The Court of Appeal found that at that stage, neither the Director nor the President knew that York had suffered a loss or that the appellant was the person responsible. York only had allegations by persons unwilling to come forward publicly, which were firmly denied by the appellant.

(3) No. Even if the release was broad enough to bar any claim by York for recovery of the money misappropriated, the release was an integral part of the agreement induced by the misrepresentations as to the appellant’s honesty. Once that agreement and release were rescinded, York was no longer barred from recovery.

(4) Issue not addressed.

2279088 Ontario Inc. v. Nisbet, 2018 ONCA 897

[Lauwers, Huscroft and Trotter JJ.A.]

Counsel:

P.R. Simon, for the appellant

C.R. Dubeau, for the respondent

Facts:

This appeal involved a dispute over a parking platform that was built on the respondent’s land and encroaches on contiguous property owned by the appellant. The appellant owns a piece of land, part of which serves as a private roadway. The respondent is one of 14 landowners who enjoys a right of way over this roadway. In 1994, the respondent’s predecessor in title built the parking platform. The top of the platform is level with the road. Because the land slopes away from the roadway, there are retaining walls on the other three sides of the platform, comprised of interlocking timbers. It is mostly filled in by gravel. The timbers that support the platform extend to the roadway and encroach by 1.37 meters. The encroachment is beneath the ground and only extends as far as a grassy area to the side of the traveled roadway. The other encroachment is at the rear of the platform, where the timbers meet at one of the corners. At a height of six feet, it encroaches by only .33 meters onto the unmaintained grassy drainage area of the appellant’s land.

When the parking platform was built in 1994, long before the parties were on the scene, a landowner who was building his own home across the roadway was able to pinpoint when the platform was constructed. He has images of the property taken before and after the platform was built. He also observed that, once completed, the platform was used exclusively by the respondent and his predecessors in title to park their respective vehicles, and those of their guests.

The appellant acquired the property in 2011 and immediately declared its rights as the owner, claiming that it could do as it wished with the land, including tearing up the asphalt roadway and replacing it with grass. It was not until 2016 that a survey revealed the encroachments at issue in this litigation. As the application judge found, it would appear that the parties had been operating on the basis of a mistake about property lines.

The appellant brought an application for a declaration of trespass and for an order that the parking platform be torn down. The respondent sought a declaration vesting title in the encroached lands in his name, based on a claim of adverse possession. The application judge dismissed the appellant’s claim and allowed the adverse possession claim, subject to the existing rights of way.

Issues:

(1) Did the application judge apply an erroneous test for adverse possession?

(2) Did the application judge err by ignoring the doctrine of inconsistent use, whereby it must be proved that the claimant’s use of the land is inconsistent with the true owner’s present or future enjoyment of the land?

(3) Did the application judge err by granting relief not sought by the respondent, thus rendering the proceeding unfair?

(4) If the appellant is successful on the adverse possession issue, is it entitled to injunctive relief based on its claim of trespass?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellant submitted that Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (C.A.) (“Keefer”) created a “modified test” when “one claims adverse possession to lands subject to others’ rights of way.” The Court of Appeal disagreed and held that the jurisprudence did not modify the requirements for adverse possession in cases involving pre-existing easements. Instead, the court in Keefer merely observed that it will be more difficult from an evidentiary perspective to establish the pre-conditions in these circumstances. As is clear, a stricter approach prevents easements from maturing into title too easily.

Moreover, there was a solid evidentiary foundation on which the application judge could find that the construction of the parking platform was not merely the excessive use of the right of way; it involved a completely different use of the land in question, different in purpose and kind from the original grant. The evidence demonstrated that the respondent and his predecessor in title unequivocally excluded the true owners and all others from the use of the encroached spaces. Over two decades of exclusive use of those spaces permitted the application judge to find the intention to exclude all others.

(2) No. Previous jurisprudence observes that inconsistent use is a “controversial element” of an adverse possession claim. This element, which was revived in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273, has in more recent times been denounced by the House of Lords as “heretical and wrong”: see J. A. Pye (Oxford) Ltd. v. Graham, [2002] UKHL 30, [2003] 1 A.C. 419, at para. 45. To the extent that it was necessary to address this issue, the Court of Appeal was satisfied that the application judge adequately dealt with inconsistent use in relation to the roadway.

(3) No. The appellant submitted that when the application judge granted the respondent possessory title subject to the same encumbrances already on title, the application judge caught the appellant by surprise and did not allow the appellant to make submissions regarding that relief. The Court of Appeal found that both parties had the opportunity to make submissions to the application judge on this issue, both orally and in writing. Moreover, there was nothing unfair or unusual about the relief granted by the application judge.

(4) No. To the extent that it was necessary to address this issue, the Court of Appeal found that this ground had no merit. The encroachments are trifling. One was underground. The fact that the encroachment is a permanent structure was irrelevant.

CM Callow Inc. v. Zollinger, 2018 ONCA 896

[Lauwers, Huscroft and Trotter JJ.A.]

Counsel:

A. Tardif, J. Duquette and R. Escayola, for the appellants

M. Peters, for the respondent

Facts:

The appellants, a group a condominium corporations, entered into two two-year maintenance contracts with the respondent. One contract covered summer maintenance work and the other covered winter maintenance work. The winter contract contained a provision allowing for early termination by the appellants on 10 days’ notice. In the spring, the appellants decided to terminate the winter contract but did not provide notice of termination until September of that year. During the summer, the respondent had, by their own initiative, performed “freebie” landscaping work in hopes that this would act as an incentive for the appellants to renew the contracts when their terms expired. Directors of two of the condominium corporations and the members of the committee responsible for handling the contracts were aware of the “freebie” services and knew the respondent was under the impression that the contracts were likely to be renewed. The respondent sued for breach of contract, with the issue being the appellants’ delay in informing the respondent of the decision to terminate.

At trial, the trial judge concluded that the appellants had breached their contractual duty of honest performance by acting in bad faith in withholding the fact they intended to terminate the winter contract and in continuing to represent to the respondent that the winter contract was not in danger of non-renewal. The trial judge held that meeting the minimum standard of honesty would have required the appellants to address the alleged performance issues with the respondent, provide prompt notice, or refrain from any representations in advance of the notice period.

Issues:

(1) Did the trial judge err in concluding the appellants had breached their contractual duty of honest performance?

Holding:

Appeal allowed.

Reasoning:

(1) The actions of the appellants did not rise to the high level required to establish a breach of the duty of honest performance. The trial judge’s findings regarding the minimum standard of honesty had the effect of substantially modifying the appellants’ right to terminate, going beyond what the duty of honest performance requires or permits. The Supreme Court held in Bhasin v Hrynew, 2014 SCC 71, that good faith contractual performance is a general organizing principle of the common law of contract, and that there is a duty of honest performance requiring parties to be honest with each other in relation to the performance of their contractual duties. However, the Supreme Court emphasized that this was not to be applied so as to undermine longstanding contract law principles and create commercial uncertainty, and the same applied to the duty of honest performance.

It was clear from Bhasin that there is no unilateral duty to disclose information relevant to termination, and the appellants were free to terminate the winter contract with the respondent provided only that they informed him of their intention to do so and gave the required notice. This is all the respondent bargained for, and all they were entitled to receive. The duty of honest performance required that the parties be honest with each other concerning matters directly linked to the performance of the contract, but did not limit the appellants’ freedom concerning contracts not yet entered into. The communications between the parties did not preclude the appellants from exercising their right to terminate the winter contract. The Court concluded by noting that their recent decision in Mohamed v Information Systems Architects Inc., 2018 ONCA 428, did not alter the analysis.

Hampton Securities Limited v. Dean, 2018 ONCA 901

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

S. Erskine and D. Barbaree, for the appellant

C. Somerville and D. Hooper, for the respondent

Facts:

The respondent was employed by the appellant as a trader. The appellant’s CEO informed the respondent that she owed the appellant money as a result of trading losses, and that she was required to post additional money to her reserve account, failing which she would be suspended.

The next day, the respondent resigned and claimed constructive dismissal. Shortly thereafter, the appellant filed a Notice of Termination (“NOT”) on the database maintained by its regulator, the Investment Industry Regulatory Organization of Canada (“IIROC”). In that filing, the appellant stated that the respondent was terminated for cause for failing to follow trading policies and engaging in unauthorized trading.

The appellant commenced an action seeking repayment of the amounts allegedly owing as a result of trading losses. The respondent counterclaimed alleging constructive dismissal and defamation. The trial judge determined that the respondent owed no money, that she was constructively dismissed, that was entitled to six months’ payment in lieu of notice, that she was entitled to damages for defamation, and that she should receive punitive damages. The trial judge also awarded costs to the respondent on a full indemnity basis.

The appellant appealed all aspects of the trial judge’s decision.

Issues:

(1) Did the trial judge err in finding that the respondent did not owe the appellant any money?

(2) Did the trial judge err in finding that the respondent was constructively dismissed?

(3) Did the trial judge err in finding the appellant liable for defamation?

(4) Did the trial judge err in awarding punitive damages?

(5) Did the trial judge err in awarding costs on a full indemnity basis?

Holding:

Appeal dismissed.

Reasoning:

(1) No. There was no basis to interfere with the trial judge’s interpretation of the employment contract with respect to trading losses. The trial judge provided thorough and compelling reasons, which were correct and entitled to deference in any case.

(2) No. There was no error in the trial judge’s conclusion that the respondent was constructively dismissed and was entitled to six months’ payment in lieu of notice, and no serious argument to the contrary.

Further, the trial judge was correct in finding that the employment contract’s termination clause was not enforceable on the basis that it excluded the respondent’s entitlement to benefits under s. 60(1)(c) of the Employment Standards Act, 2002, S.O. 2000, c. 41. The trial judge correctly analogized the termination clause in this case to the termination clause in related case law.

(3) No. The Court found that, entirely apart from the issue of malice, the trial judge was correct to find that the defence of qualified privilege did not apply on the basis that the appellant’s statement exceeded the legitimate purposes of the duty to report all internal discipline matters to IIROC. The information submitted in the NOT was untrue and wholly unsubstantiated. Providing misleading statements to IIROC clearly exceeded the scope of the duty to report all internal discipline matters or the duty to warn of potential risks that registered individuals may create.

(4) No. The award of punitive damages was perfectly appropriate given the appellant’s conduct, including the independently actionable breach of the duty of good faith in the employment contract. Such an award was necessary to sanction the respondent for its marked departure from the ordinary standards of decent behavior.

Contrary to the appellant’s submission, there was no overlap in the damages awarded. The damages were modest and did not come close to fully compensating the respondent for the devastating consequences of the appellant’s conduct.

(5) No. The respondent made repeated generous offers to settle the case that the appellant rebuffed or ignored. It was clear that the appellant took a hardline, no-compromise position in this litigation. The Court of Appeal observed that such a tactic comes with costs consequences, and that it was not the Court’s responsibility to relieve the appellant of those consequences.


SHORT CIVIL DECISIONS

De Montigny v. Roy, 2018 ONCA 884

[Doherty, van Rensburg and Hourigan JJ.A.]

Counsel:

N. Paris and A. Stikuts, for the appellant

J. Andrew and G. Cantin, for the respondents

Keywords: Labour Law, Civil Procedure, Striking Pleadings, Jurisdiction, No Reasonable Cause of Action, Weber v Ontario Hydro, [1995] 2 S.C.R. 929, Giorno v Pappas (1999), 42 O.R. (3d) 626 (C.A.)


PROVINCIAL OFFENCES AND CRIMINAL DECISIONS

Northern Bruce Peninsula (Municipality) v. Dolson, 2018 ONCA 895

[Watt, van Rensburg and Brown JJ.A.]

Counsel:

N. Lovell, for the appellant

J. Damstra, for the respondents

Keywords: Provincial Offences, Municipal Law, Building Code, Limitation Periods, Building Code Act, 1992, SO 1992, c 23, s 36(8), R v Pickles, [2004] OJ No 662 (CA)

Facts:

On October 15, 2012, the first complaint about the offending building structure came to the attention of the municipality.  Officials attended at the property and issued compliance orders, to no avail.  An information was sworn and summons issued on June 12, 2013 – about eight months following the initial complaint.

At trial, the respondents were convicted for breaches of a municipal by-law and the Building Code Act (“BCA”).  The respondents appealed to the Ontario Court of Justice.  The appeal judge considered an argument that was not advanced at trial.  That argument related to the limitation period applicable to proceedings under the BCA.

Relying on R v Pickles, the appeal judge concluded that the one-year limitation period under the BCA ran from the date the construction of the building was finished.  The appeal judge quashed the conviction because of the failure of the municipality to establish that proceedings were instituted not more than one year after the construction was completed.

Issues:

(1) Did the appeal judge err in law by applying the wrong limitation period?

Holding:

Appeal allowed.

REAsoning:

(1) Yes, the appeal judge erred in law by applying the wrong limitation period.  On July 1, 2010, s 36(8) of the Building Code Act was amended to provide that the one-year limitation period commenced on the date that “the facts on which the proceeding is based first came to the knowledge of an officer or the chief building official.”  The prosecution was instituted within one year of the municipality first gaining knowledge of the structure.  There was evidence at trial about this date and it was not open to the appeal judge to interfere with the trial court’s finding on this issue.

R. v. D.E. (Publication Ban), 2018 ONCA 883

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

M. Webb, for the appellant

J. Hanna, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Evidence, The Rule in Browne v Dunn, R v Radcliffe, 2017 ONCA 176, Browne v Dunn (1893), 6 R. 67 (U.K.H.L.), Adverse Inference, R v Ellis, 2013 ONCA 9

R v. Lewin, 2018 ONCA 882

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

M. Halfyard, for the appellant

L. Shin, for the respondent

Keywords: Criminal Law, Child Abduction, Criminal Code, s. 282(1)

R v. Williams, 2018 ONCA 886

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

T. Gilliam, for the appellant

N. M. Rouleau and D. Ciarabellini, for the respondent

Keywords: Criminal Law, Controlled Drugs and Substances Act, s. 6(1), Criminal Code, s. 742.1(c), Sentencing

R v. Fells, 2018 ONCA 881

[Simmons, Juriansz and Benotto JJ.A.]

Counsel:

I. Grant, for the appellant

J. Hanna, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Corroboration

R v. Ludwig, 2018 ONCA 885

[Strathy C.J.O., Doherty and Roberts JJ.A.]

Counsel:

C. Martell, for the appellant

C. V. Weiler, for the respondent

Keywords: Criminal Law, Arson, Intentionally or Recklessly Causing Damage by Fire to Dwelling House, Willfully and Without Lawful Cause Endangering a Dog, Mens Rea, Criminal Code, s. 434.1 and s. 433(a), Evidence, Burden of Proof, R. v. Greenwood (1864), 23 U.C.R. 250, R. v. Rothe, [1966] 4 C.C.C. 400, R. v. Chandroga [1999], O.J. No. 488

R v. Lopez-Restrop, 2018 ONCA 887

[LaForme, Watt and Trotter JJ.A.]

Counsel:

A. Prevost and J. Prosser, for Mr. Lopez-Restrepo

R. Sheppard, for Mr. Tsegaye

J. E. Dean, for Mr. Mehmeti

A. Choat and B. G. Puddington, for the respondent

Keywords: Criminal Law, Drug Offences, Delay, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Morin [1992], 1 S.C.R. 771, R v Faulkner, 2018 ONCA 174, R v T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, R v Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741


ONTARIO REVIEW BOARD

Cardinal (Re), 2018 ONCA 892

[Juriansz, Brown and Huscroft JJ.A.]

Counsel:

W. Murray, for the appellant

J. Cameron, for the respondent

M. Pilon, for the Person in Charge of the Royal Ottawa Health Care Group

Keywords: Ontario Review Board, Mental Illness, Danger to Public Safety

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.

Print:
EmailTweetLikeLinkedIn
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.