BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (DECEMBER 17 – 21, 2018)

By John Polyzogopoulos on December 21, 2018

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Good evening.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario released this past week. The Court released a great number of decisions this week, some of them quite lengthy.

In Das v George Weston Limited, the Court of Appeal upheld a decision of Justice Perrell in which His Honour had dismissed as disclosing no reasonable cause of action a $2 billion class action against Loblaws in relation to the tragic 2013 collapse of the Rana Plaza building in Savar, Bangladesh. That collapse killed or seriously injured over 3,600 people, many of whom worked for Loblaws’ suppliers of its Joe Fresh clothing line.

The Court held that the claims were governed by the laws of Bangladesh and that, as a result, most of the claims were statute-barred as a result of Bangladesh’s Limitations Act, 1908. Furthermore, the Court held that it was “plain and obvious” that the claims that were not statute-barred would fail under Bangladeshi and English tort law. Loblaws, as merely a customer of the garment manufacturers who carried on business in Rana Plaza, simply did not owe a duty to the victims.

In Paulus v Fleury, the Court set aside the motion judge’s decision which had rescinded a settlement agreement in an MVA case on the basis of alleged misrepresentations made by opposing counsel at the pretrial. The Court determined that the representations made were not fraudulent and commented on the duties of counsel in making submissions on behalf of their clients.

Other topics covered this week included family law (varying 27 year old final support orders, striking pleadings for failure to disclose financial information and the extent of permission to participate in the trial when one’s answer is struck), adverse possession, specific performance of an option to repurchase land, forfeiture of a deposit paid under an agreement of purchase and sale of land, the interpretation of a continuous use clause in a commercial lease and striking pleadings. We also summarized another provincial offences matter this week, as it is relevant to anyone who will ever get a speeding ticket. The Crown is now obligated to provide, by way of disclosure, the user’s manual to the radar gun. The Crown opposed having to provide individual disclosure to every defendant, citing its policy of making the manuals available for inspection a the Crown’s office and circulating copies to the paralegals who regularly try speeding tickets in the Provincial Courts. The Court said those efforts were not enough to satisfy the Crown’s disclosure obligation.

Merry Christmas to everyone celebrating, and all the best for the holiday season.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Das v. George Weston Limited, 2018 ONCA 1053

Keywords: Torts, Negligence, Vicarious Liability, Breach of Fiduciary Duty, Civil Procedure, Class Proceedings, Striking Pleadings, No Reasonable Cause of Action, Expert Evidence, Foreign Law, Lex Loci Delicti, Standard of Review, Rules of Civil Procedure, Rule 21.01(1)(a), r. 21.01(1)(b), Lister v. McAnulty, [1944] S.C.R. 317, General Motors Acceptance Corporation of Canada, Limited v. Town and Country Chrysler Limited, Motion to Strike, Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121, 136 O.R. (3d) 654, R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, Reasonable Prospect of Success, Tolofson v. Jensen, [1994] 3 S.C.R. 1022

Canadian Civil Liberties Association v. Canada (Attorney General), 2018 ONCA 1038

Keywords: Constitutional Law, Administrative Law, Judicial Review, Criminal Law, Orders, Declarations of Constitutional Invalidity, Corrections and Conditional Release Act, S.C. 1992, c. 20, Canadian Charter of Rights and Freedoms, Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491

Gionet v. Pingue, 2018 ONCA 1040

Keywords: Family Law, Property, Presumption of Resulting Trust, Equalization of Net Family Property, Unequal Division of Property, Civil Procedure, Trials, Adjournments, Self-Represented Litigants, Family Law Act, R.S.O. 1990, c. F. 3, s. 5(6), Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, Best v. Best, [1999] 2 S.C.R. 868, Boaden Catering Limited v. Real Food for Real Kids Inc., 2017 ONCA 248, Dujardin v. Dujardin Estate, 2018 ONCA 597, Davids v. Davids (1999), 125 O.A.C. 375

DiMillo v. 209932 Ontario Inc., 2018 ONCA 1051

Keywords: Contracts, Real Estate, Agreements of Purchase and Sale of Land, Options, Specific Performance, Semelhago v. Paramedevan, [1996] 2 SCR 415, Kloepfer Wholesale Hardware v. Roy, [1952] 2 SCR 465 (S.C.C.), Pierce v. Empey, [1939] SCR 247 (S.C.C.), SBS Sealants Inc. v Robroy Industries Ltd., (2002) 59 OR (3d) 257 (C.A.), McCallum v Zivojinovic (1977), 16 OR (2d) 721 (C.A.), Kirby v. Cameron, [1961] OR 757 (C.A.), Erie Sand and Gravel Ltd. v Seres’ Farms Ltd., 2009 ONCA 709, John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 OR (3d) 304 (C.A.)

Friday Harbour Village Inc. v. 2138746 Ontario Inc., 2018 ONCA 1047

Keywords: Real Property, Adverse Possession, Prescriptive Easements, Rights of Way, Trespass, Real Property Limitations Act, R.S.O. 1990, c. L.15, s. 13, Marshall v. Taylor, [1895] 1 Ch. 641 (Eng. C.A.), Raso v. Lonergan (1996), 13 O.T.C. 230 (Gen. Div.), Grygorcewicz v. Agar, 1998 CanLII 7141 (Ont. C.A.), Brad-Jay Investments Ltd. v. Village Developments Ltd. (2006), 218 O.A.C. 315 (C.A.)

Hatami v. 1237144 Ontario Inc., 2018 ONCA 1061

Keywords: Contracts, Real Estate, Agreements of Purchase and Sale of Land, Forfeiture of Deposit, Anticipatory Breach, Repudiation, Negligent Misrepresentation

McHale v. Lewis, 2018 ONCA 1048

Keywords: Torts, False Arrest, Conspiracy, Civil Procedure, Striking Pleadings, Frivolous, Vexatious or Abuse of Process, Leave to Amend, Merger, Limitation Periods, Discoverability, Canadian Charter of Rights and Freedoms, s 2, 15, Rules of Civil Procedure, RRO 1990, Reg 194, r 25.11, 26.01, Limitations Act, 2002, SO 2002, c 24, Sched B, Proceedings Against the Crown Act, RSO 1990, c P.27, Javitz v BMO Nesbitt Burns Inc (2011), 105 OR (3d) 279 (Ont Sup Ct J), Aristocrat Restaurants Ltd (cob Tony’s East) v Ontario, [2003] OJ No 5331, Jevco Insurance Co v Pacific Assessment Centre Inc, 2015 ONSC 7751, Vancouver (City) v Ward, 2010 SCC 27, Hunt v Carey Canada Inc, [1990] 2 SCR 959, Tran v University of Western Ontario, 2016 ONCA 978, Metropolitan Toronto Condominium Corporation No 1352 v Newport Beach Development Inc, 2012 ONCA 850, Winmill v Woodstock (Police Services Board), 2017 ONCA 962, leave to appeal refused, [2018] SCCA No 39, Kolosov v Lowe’s Companies Inc, 2016 ONCA 973

Haworth v. Haworth, 2018 ONCA 1055

Keywords: Family Law, Spousal Support, Orders, Variation, Material Change in Circumstances, Miglin v. Miglin, 2003 SCC 24, Pustai v. Pustai, 2014 ONCA 422, Divorce Act, R.S.C., 1985, c.3 (2^nd Supp.), s. 17(7), Spousal Support Advisory Guidelines

Vista Sudbury Hotel Inc. (Rainbow Value Centre) v. The Oshawa Group Limited, 2018 ONCA 1068

Keywords: Contracts, Real Property, Commercial Leases, Interpretation, Continuous Use Clauses

Mullin v. Sherlock, 2018 ONCA 1063

Keywords: Family Law, Disclosure, Orders, Enforcement, Striking Pleadings, Conduct of Trial, Kovachis v. Kovachis, 2013 ONCA 663, Roberts v. Roberts, 2015 ONCA 450, Chiaramente v. Chiaramente, 2013 ONCA 641, Family Law Rules, O. Reg. 114/99, Rule 1(8)

Paulus v. Fleury, 2018 ONCA 1072

Keywords: Contracts, Settlements, Enforcement, Rescission, Fraud, Civil Procedure, Pretrials, Duties of Counsel, Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320

Short Civil Decisions

Colenbrander v. Savaria Corporation, 2018 ONCA 1057

Keywords: Appeal Book Endorsement, Jurisdiction, Good Faith

Greensides v. Kawartha Lakes (City), 2018 ONCA 1056

Keywords: Appeal Book Endorsement, Notice of Abandonment

Hart v. Balice, 2018 ONCA 1065

Keywords: Civil Procedure, Orders, Enforcement, Liens, Writs of Seizure and Sale

Koolatron v. Synergex Corporation, 2018 ONCA 1058

Keywords: Appeal Book Endorsement

Robson v. The Law Society of Upper Canada, 2018 ONCA 1076

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rule 25.06(8), Miazga v Kvello Estate, 2009 SCC 51, Conway v Law Society of Upper Canada, 2016 ONCA 72, Pastore v. Aviva Canada Inc., 2012 ONCA 887

Criminal Decisions

R. v. Coussons, 2018 ONCA 1043

Keywords: Criminal Law, Second Degree Murder, Sentencing

R. v. Eid, 2018 ONCA 1044

Keywords: Criminal Law, Appointing Counsel

R. v. Wiafe, 2018 ONCA 1045

Keywords: Criminal Law, Fraud Over $5,000

R. v. D.E.S., 2018 ONCA 1046

Keywords: Criminal Law, Assault, Assault with a Weapon, Sexual Interference, Sexual Assault, Uttering a Threat, Failing to Comply with Recognisance, Failure to Comply with Probation, Evidence, Credibility, Reliability, Children’s Testimony, Sentencing, R. v. W. (D.), [1991] 1 S.C.R. 742, R. v. B. (G.), [1990] 2 S.C.R. 57, R. v. Wadforth, 2009 ONCA 716, Gladue Principles, R. v. R. S., 2015 ONCA 291

R. v. J.E., 2018 ONCA 1049

Keywords: Criminal Law, Assault, Sexual Assault

R. v. Ranglin, 2018 ONCA 1050

Keywords: Criminal Law, First Degree Murder, Firearms, Evidence, KGB Statements, R. v. B. (K.G.), [1993] 1 S.C.R. 740, R. v. Sinobert, 2015 ONCA 691, Vetrovec Warnings, Unsavory Witnesses, Credibility, R. v. A.W.B., 2015 ONCA 185, Judicial Discretion, R. v. Potvin, [1989] 1 S.C.R. 525, R. v. Khela, 2009 SCC 4, Confirmatory Evidence, Third Party Suspect Witnesses, R. v. McMillan (1975), 7 O.R. (2d) 750 (C.A.), aff’d [1977] 2 S.C.R. 824, Air of Reality, R. v. Fontaine, 2004 SCC 27

R. v. D.M., 2018 ONCA 1060

Keywords: Criminal Law, Evidence, Admissibility, Video-Recorded Statement, Credibility, Criminal Code, s. 715.1

R. v. France, 2018 ONCA 1052

Keywords: Criminal Law, Manslaughter, Gardiner Hearing

R. v. Brown, 2018 ONCA 1064

Keywords: Criminal Law, Possession of Narcotics, Possession for the Purpose of Trafficking, Evidence, Burden of Proof, R. v. Lifchus, [1997] 3 S.C.R. 320, Watt’s Manual of Criminal Jury Instructions, Second Edition

R. v. McKenna, 2018 ONCA 1054

Keywords: Criminal Law, Sexual Assault, Evidence, Admissibility, Voir Dire, Jury Instructions, Criminal Code, s. 145(2), R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, United States of America v. Anderson, 2007 ONCA 84, R. v. White, 2011 SCC 13, R. v. White, [1998] 2 S.C.R. 72, R. v. Hall, 2010 ONCA 724

R. v. Stubbs, 2018 ONCA 1068

Keywords: Criminal Law, Second Degree Murder, Defences, Provocation, Sentencing, R. v. Luciano, 2011 ONCA 89

R. v. Upjohn, 2018 ONCA 1059

Keywords: Criminal Law, Breach of Trust, Public Officials, Criminal Code, s. 122, R. v. Boulanger, 2006 SCC 32

R. v. Lee, 2018 ONCA 1067

Keywords: Criminal Law, Drug Trafficking, Evidence, Unreasonable Search and Seizure, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Canadian Charter of Rights and Freedoms, s. 8, R. v. McKanick, 2015 ONSC 2128, R. v. Golden, 2001 SCC 83

R. v. Wheeler, 2018 ONCA 1069

Keywords: Criminal Law, Sexual Interference, Criminal Code, s. 177.2(2)

R. v. Beaudoin, 2018 ONCA 1071

Keywords: Appeal Book Endorsement, Criminal Law, Aggravated Sexual Assault, Sentencing, Mitigating Factors

R. v. J.R., 2018 ONCA 1070

Keywords: Appeal Book Endorsement, Criminal Law, Criminal Code, s. 743.2.1

R. v. Vining, 2018 ONCA 1078

Keywords: Criminal Law, Theft, Dangerous Driving, Failing to Stop for Police, Mischief, Evidence, Vetrovec Witness, R .v. Wadworth, 2009 ONCA 716

Provincial Offences

York (Regional Municipality) v. McGuigan, 2018 ONCA 1062

Keywords: Provincial Offences, Highway Offences, Speeding, Crown Disclosure, Third Party Disclosure, Relevance, Administrative Law, Certiorari, Provincial Offences Act, RSO 1990, c P.33, s 2, 46(2), 135(1), 140(1), 141(2.1), 141(3), 141(4), Highway Traffic Act, RSO 1990, c H.8, s 128, Criminal Code, RSC 1985, c C-46, s 258(1)(c), 784(1), Canadian Charter of Rights and Freedoms, s 7, 11(d), R v Jackson, 2015 ONCA 832, leave to appeal to SCC refused, [2016] SCCA No 38, R v Arcand (2004), 73 OR (3d) 758 (CA), R v Johnson (1991), 3 OR (3d) 49 (CA), R v 1353837 Ontario Inc (2005), 74 OR (3d) 401 (CA), R v Awashish, 2018 SCC 45, York (Municipality) v Irwin, 2017 ONCA 906, R v Gubbins, 2018 SCC 44, R v Stinchcombe, [1991] 1 SCR 326, R v McNeil, 2009 SCC 3, R v Quesnelle, 2014 SCC 46, R v J-LJ, 2000 SCC 51, R v Blencowe (1997) 35 OR (3d) 536 (Gen Div), R v Pan, 2014 ONSC 4645, R v Dunn (2009), 251 CCC (3d) 384 (Ont Sup Ct J), Durham (Regional Municipality) v Driscoll-Rogers, 2008 ONCJ 581, R v Bennett, 2017 ONCA 780, R v Fiddler, 2012 ONSC 2539, R v Kassam, 2016 ONSC 6961

CIVIL DECISIONS

Das v. George Weston Limited, 2018 ONCA 1053

[Doherty and Feldman JJ.A. and Gray J. (ad hoc)]

Counsel:

J. P. Rochon, P. R. Jervis and G. Nayerahmadi, for the appellants

C. D. Bredt, M. F. Kremer and A. Fotheringham, for the respondents George Weston Limited, Loblaws Companies Limited, Loblaws Inc. and Joe Fresh Apparel Canada Inc.

M. A. Eizenga, R. K. Agarwal and G. G. Beaulne, for the respondents Bureau Veritas – Registre International de Classification de Navires et D’Aeronefs SA, Bureau Veritas Consumer Products Services, Inc. and Bureau Veritas Consumer Products Services (BD) Ltd

P. J. Pape and S. Chaudhury, for the Law Foundation of Ontario

Facts:

Loblaws is Canada’s largest food, clothing, and pharmacy retailer. For many years, Loblaws purchased clothes from Pearl Global Limited (“Pearl Global”), which in turn outsourced some of the work to New Wave Style Limited and New Wave Bottoms Limited (collectively, “New Wave”). New Wave Bottoms operated on the third floor of the Rana Plaza building in Savar, Bangladesh (“Rana Plaza”), while New Wave Style operated on the sixth and seventh floors of Rana Plaza. At the time of the infamous collapse of the Rana Plaza, Loblaws purchased about 50% of the garments New Wave produced. Bureau Veritas is a consulting services enterprise that Loblaws retained to perform auditing and inspection services of its offshore supplier factories.

Rana Plaza was a nine-floor mixed commercial and industrial building. It was originally constructed as a six-floor commercial complex in 2006, without proper approvals. It was subsequently expanded by two additional floors and, just before the collapse, construction of a ninth floor was nearing completion.

On April 23, 2013, cracks were discovered in three pillars of the structure of Rana Plaza. Local police evacuated the site and workers were sent home. Later that day, however, managers at New Wave ordered New Wave employees to return to work the following day. The next morning, April 24, 2013, New Wave advised workers that the building was safe and threatened to terminate their employment if they did not return to work.

That same morning, as a result of a power outage, the large back-up generators on the upper floors of Rana Plaza began to operate, causing substantial vibration. Around 9 a.m., Rana Plaza collapsed, killing 1,130 people and injuring 2,520 others. Those injured or killed included employees of New Wave, employees of other garment businesses operating out of Rana Plaza, and other people who happened to be in or around the building at the time of the collapse.

On April 22, 2015, just before the second anniversary of the collapse, the appellants commenced an action in Ontario against Loblaws for 1) negligence, 2) vicarious liability for the negligence of Pearl Global and New Wave, and 3) breach of fiduciary duty. The appellants also alleged that Bureau Veritas was liable for negligence. The appellants sought $2 billion in damages, as well as other relief, including punitive damages. They brought the action not only on behalf of employees of New Wave and their survivors, but on behalf of all persons who were in Rana Plaza at the time of the collapse and survived, the estates of all persons who died as a result of the collapse, and the family members and dependents of those who died or were injured.

The appellants brought a motion to have their action certified as a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6. The respondents contested the certification motion, and brought their own motions for an order under Rule 21.01(1)(a) of the Rules of Civil Procedure, declaring that: 1) the action was statute-barred under Bangladeshi law, which law applied to the claims; and 2) it was plain and obvious that the causes of action could not succeed under Bangladeshi law.

Issues:

(1) What is the appropriate standard of review on appeal from a Rule 21 motion?

(2) Did the motion judge err in principle by failing to properly apply Rule 21 evidentiary principles, and the plain and obvious test?

(3)(a) Is the law of Bangladesh the lex loci delicti of the claims?

(3)(b) Did the motion judge err by failing to exercise his discretion to decline to apply Bangladeshi law under the injustice exception?

(4)(a) Is the limitation period one year under Articles 21 and 22, or six years under Article 120 of the Limitation Act, 1908?

(4)(b) Was the one-year limitation period tolled against Loblaws by s. 13 of the Limitation Act, 1908?

(5)(a) Is the claim in negligence against Loblaws bound to fail under Bangladeshi law?

(5)(b) Is the claim in vicarious liability against Loblaws bound to fail under Bangladeshi law?

Holding:

Appeal dismissed.

Reasoning:

(1) The correctness standard.

Courts require expert evidence to decide issues involving the content of foreign law. Judges are entitled to accept or reject the expert evidence and make findings on foreign law based on that evidence. As established in Lister v. McAnulty, [1944] S.C.R. 317, a judge is also entitled to review the sources relied on by the experts and come to his or her own conclusions based on that examination. Judges’ findings are therefore findings of fact, which would normally be accorded deference on appeal. However, the court in General Motors Acceptance Corporation of Canada, Limited v. Town and Country Chrysler Limited, 2007 ONCA 904, 88 O.R. (3d) 666 (“General Motors”) held that questions of foreign law should be reviewed on a correctness standard.

The respondents submitted that the Court should apply the deferential standard to its review of the motion judge’s findings of foreign law in the face of competing expert opinions, and that General Motors should be distinguished on its facts. In that case, the trial judge ignored the expert evidence and interpreted Quebec civil law himself. Rather than find that this resulted in a palpable and overriding error, the court held that it was as well-positioned as the trial judge to determine questions of foreign law and therefore approached the issue de novo, applying the correctness standard of review. To that end, the Court in this case was also satisfied that the motion judge was correct in his findings on Bangladeshi law.

(2) No. The appellants’ position was that the motion judge made a fundamental error in his approach to their pleading in the Fourth Amended Statement of Claim. They said that he did not read the pleading generously, he did not accept the pleaded facts as true, and he should not have used the content of the pleaded documents to refute pleaded allegations. They also submitted that he instead treated the motion as a Rule 20 summary judgment motion, and effectively found that the appellants had not proved their case.

The proper approach to a Rule 21 motion to strike a claim as disclosing no reasonable cause of action is that the motion judge must accept the facts pleaded in the statement of claim as true to determine whether it is plain and obvious, based on the current state of the law, including how it may be open to development, that the claim discloses no reasonable cause of action. While material facts that are pleaded in a statement of claim are assumed to be true for the purposes of a motion to strike, bald conclusory statements of fact and allegations of legal conclusions unsupported by material facts are not.

The leading case on the power to strike out a claim is R. v. Imperial Tobacco, 2011 SCC 42. In that case, McLachlin C.J. confirmed that a claim will not be struck simply because it is novel. If, however, it is plain and obvious that the pleading discloses no reasonable cause of action, it cannot proceed.

There was no error in the motion judge’s approach. The motion judge thoroughly reviewed all of the material, which included a 261-paragraph statement of claim and 73 volumes of evidence and compendia. His findings regarding what pleadings were facts, and what were legal conclusions or attempts to characterize facts to fit a legal theory, were fair and proper, and fell within his purview.

(3)(a) Yes. The framework for the choice of law analysis in tort was established in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 (“Tolofson”). In Tolofson, the court held that tort claims should be governed by the substantive law of the place where the activity or wrong occurred, except where doing so would give rise to an injustice.

In his analysis, the motion judge relied on the principle of tort law that there is no actionable wrong without injury. He reasoned that the alleged duty was owed to the people in Bangladesh who were killed or injured there. The impugned decisions, it was alleged, resulted in those deaths and injuries. The wrong occurred in Bangladesh, and the lex loci delicti is therefore the law of Bangladesh.

(3)(b) No. The motion judge fully considered and rejected the two prongs of this submission: that Sharia law mandates an unequal distribution of damages to men and women and would therefore discriminate against women claimants; and that the unavailability of punitive damages offends principles of essential justice.

On the Sharia law issue, the motion judge described how it could not affect the liability claim and could only have an impact on a very small subset of female claimants, namely female family class members who are daughters of a deceased in cases where they have a male sibling or siblings. He concluded that because Sharia law would not affect the rights of most of the claimants, there was no public policy reason not to apply Bangladeshi law to the claims of those claimants.

The motion judge also rejected the appellants’ argument that the unavailability of punitive damages under Bangladeshi law would result in an injustice. First, he was not convinced that punitive damages were unavailable in Bangladesh. Second, because of the nature of the claims, he concluded that if the appellants were awarded a $2 billion compensatory award based on breach of a novel duty of care, it was unlikely that punitive damages would also be awarded. Finally, he observed that the absence of the availability of punitive damages is not the type of issue that offends Canadian fundamental values.

(4)(a) One year. Section 21 of the Limitation Act, 1908, which is the applicable limitations statute in Bangladesh, lists the limitation period by executors, administrators or representatives of injured parties under the Fatal Accidents Act, 1855 is one year. Similarly, Section 22 of the Limitation Act, 1908 states that the limitation period for compensation for any other injury to an injured person is also one year. This was re-affirmed in Bangladesh Beverage Industries Ltd. v. Rowshan Akhter (2016), 69 Dhaka L.R. 196 (S.C. Bangladesh App. Div.) by the Appellate Division Court of Bangladesh.

The Court agreed with the motion judge’s decision to follow the clear language of Bangladesh’s Limitation Act, 1908. Any reading that finds an applicable six-year limitation period stems from a misreading of the Limitation Act, 1908.

(4)(b) No. The Court held that it was plain and obvious that under Bangladeshi law, the one-year limitation period was not tolled by s.13 of Bangladesh’s Limitation Act, 1908.

(5)(a) Yes. The parties agreed that the claims were novel, and that the courts of Bangladesh would be heavily influenced by the development of the law in England. As a result, the motion judge considered the experts’ opinions based on the English case law, and found that he preferred and accepted the opinion of the respondents’ expert, Dr. Goudkamp, and did not accept the opinion of the appellants’ expert, Dr. Morgan.

The basis of the English courts’ current approach to the question whether a duty of care is owed in any particular situation was described by the House of Lords in Caparo Industries Plc v. Dickman, [1990] 2 A.C. 605 (H.L. (Eng.)) as requiring consideration of three factors: foreseeability of harm, a relationship of proximity, and whether it is “fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”.

With respect to Loblaws’ liability, the Court found that it was plain and obvious that a negligence claim against Loblaws would fail under Bangladeshi law. The facts did not amount to the type of relationship or control over New Wave’s operations by Loblaws that has been found in English law to be sufficient to establish proximity or assumption of responsibility, and to thereby impose a duty of care to protect against harm by third parties. Loblaws was not directly involved in the management of New Wave, nor in the process of manufacturing the products. Loblaws did not have control over where the manufacturing operation took place. Loblaws’ only means of controlling New Wave was through cancellation of its product orders from Pearl Global for non-compliance with the CSR Standards. Nor is there any pleaded history of Loblaws using that lever to enforce any change in New Wave’s operations.

Similarly, the Court held that the motion judge correctly held that it was plain and obvious that the appellants’ pleaded claim in negligence against Bureau Veritas would fail under Bangladeshi law. The appellants did not point to any precedent from any country in which a court has imposed a duty of care on a service provider to a third party to perform an activity outside the scope of its limited retainer.

(5)(b) Yes. The Court held that Loblaws could not be held vicariously liable for the actions of New Wave and Pearl Global under Bangladeshi law. Garment manufacturing is not an inherently dangerous or hazardous activity. New Wave and Pearl Global were not on the staff of Loblaws, as either employees or independent contractors. Nor was it pleaded that New Wave was acting as agent for, or on behalf of, Loblaws in conducting its operations. The Court held that, even if a Bangladeshi court looked to the Indian jurisprudence to expand the established test for vicarious liability set out by the High Court Division, it is plain and obvious the claim against Loblaws would fail.

Canadian Civil Liberties Association v. Canada (Attorney General), 2018 ONCA 1038

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

Counsel:

J. Lisus, H. M. Rosenberg, L. Moscu and C. Malischewski, for the appellant

K. Hucal, J. Provart and B. Bechard, for the respondent

M. S. Dunn and A. Bolieiro, for the intervener Attorney General of Ontario

M. Horner and N. Farahani, for the intervener Ontario Human Rights Commission

Facts:

The Court heard an appeal from the order of Marrocco A.C.J.S.C. (the “application judge”) dated February 6, 2017 (the “Order”). The Order declared that ss. 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) contravene s. 7 of the Canadian Charter of Rights and Freedoms and are of no force and effect. The application judge found that the “fifth working day review” for administrative segregation was inconsistent with the principles of fundamental justice and breached s. 7 of the Charter because s. 33(1) of the CCRA did not provide for meaningful independent review of administrative segregation decisions.

The Order provided for the suspension of the declaration of invalidity for 12 months from December 18, 2017. The application judge was satisfied that a suspension of the declaration of constitutional invalidity was necessary to enable Parliament to enact an appropriate legislative response.

The CCRA was also challenged in British Columbia in January, 2018. The Supreme Court of British Columbia granted a declaration that ss. 31 and 33-37 of the CCRA infringed ss. 7 and 15 of the Charter. It ordered that the declaration of invalidity be suspended for a period of 12 months. The order was appealed to the Court of Appeal for British Columbia and the appeal was heard on November 13- 14, 2018. The decision is under reserve.

The respondent brought a motion pursuant to s. 134 of the Courts of Justice Act, R.S.O 1990, c. C.43, to extend the suspension of the declaration of constitutional invalidity. The purpose of the proposed extension is to enable Parliament to consider Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act.

Issue:

(1) Should the Court grant the respondent’s motion for a proposed extension of the suspension of the declaration of constitutional invalidity?

Holding:

Motion granted.

Reasoning:

(1) Yes. The extension of the declaration is necessary to enable the legislative process to be completed. Giving immediate effect to the declaration of invalidity, without any measures in place to protect those currently held in administrative segregation and Correctional Service of Canada personnel, would pose an unacceptable danger to such individuals and, ultimately, to the public.

Gionet v. Pingue, 2018 ONCA 1040

[Sharpe, Paciocco and Harvison Young JJ.A.]

Counsel:

S. Lein, for the appellant

G. G., acting in person via teleconference

Facts:

The respondent and appellant were married on August 10, 2003, and separated on September 2, 2013. The appellant eared a higher income for most of the marriage.

The only issue at trial was the equalization of net family property (“NFP”) which turned mainly on the value of the matrimonial home and whether it was held beneficially by both parties, or whether the appellant was the sole owner because she alone was on title as the owner. The trial judge found that the respondent was a beneficial owner of the matrimonial home, and thus ordered the respondent to pay the appellant an equalization payment of $59,535.98.

The appellant appealed that decision on four grounds.

Issues:

(1) Did the trial judge err in finding that the respondent was a beneficial owner of the matrimonial home?

(2) Did the trial judge err in failing to grant an adjournment requested by the appellant four days into the trial?

(3) Did the trial judge err in failing to meet her duty to assist the appellant as a self-represented litigant?

(4) Did the trial judge err in failing to award the appellant an unequal division of the net family property pursuant to s. 5(6) of the Family Law Act, R.S.O. 1990, c. F. 3 (the “Act”)?

Holding:

Appeal dismissed.

Reasoning:

(1) No. Both the Act and leading Canadian jurisprudence state that when there are questions of ownership of property between spouses, the decision maker must apply a presumption of a resulting trust. To that end, the appellant did not rebut this presumption. Moreover, the fact that the appellant earned a higher income during the course of the marriage does not warrant an unequal division of the matrimonial property upon marriage breakdown. It was the legislature’s intent to assume equal contribution during the course of the marriage, and the trial judge gave effect to that intent.

(2) No. The decision to deny an adjournment is discretionary and will only be interfered with if the trial judge failed to take account relevant factors and exercised his or her discretion unreasonably, such that the discretion is contrary to the interests of justice.

There was no reason to interfere with the trial judge’s decision to refuse to adjourn the trial. The appellant had ample notice of the trial dates, and elected to call on expert witness. This demonstrated that she was aware of the need to ensure her witnesses were available for trial.

(3) No. In ensuring that a self-represented litigant has a fair trial, the trial judge must treat the litigant fairly and attempt to accommodate their unfamiliarity with the trial process, in order to permit them to present their case. To that end, the trial judge made significant and sustained efforts throughout the course of the trial to assist the appellant. The trial judge also provided detailed answers to the appellant’s questions, explained various aspects of trial procedure and the rules of evidence, and allowed for brief adjournments to facilitate settlement discussions and document review.

(4) No. The case law surrounding the interpretation of s. 5(5) of the Act states that the test to be applied in ordering an unequal division of NFP is not “mere unfairness” but a “shock to the conscience”. That was not the case in this situation. The appellant’s argument that, because she contributed more to the asset acquired in the course of the marriage, she should be entitled to more upon the marriage breakdown, is antithetical to the scheme of marital partnership in the Act.

DiMillo v. 209932 Ontario Inc., 2018 ONCA 1051

[Rouleau, Pardu and Benotto JJ.A.]

Counsel:

A. Conte, for the appellant

J. Macdonald, for the respondent

Facts:

The appellant owned a large parcel of land and severed certain lots, selling two of them to the respondent for cash and a take-back mortgage. The agreement of purchase and sale included an option clause providing that the respondent was to build a specified industrial building within 30 months of closing, failing which the appellant would have the option to buy back the land at the original purchase price. Once the option was exercised, the sale back to the appellant was to be completed within 30 days after notice of the exercise of the option was given to the respondent. The agreement was silent as to when the notice of the exercise of the option had to be given. It also included a clause whereby the respondent agreed not to sell, assign or transfer its interest in the agreement without the prior written consent of the appellant.

By the end of the 30 month period, the respondent had not taken any steps to build on the property, and at the end of a one-year extension granted by the appellant the respondent still had not taken steps to build. Six months after the end of one-year extension, the appellant’s lawyer sent a letter to the respondent and the respondent’s lawyer exercising the option (the “Notice”). Upon receipt of the Notice, the respondent asked for another one-year extension under the option clause. The appellant refused and insisted on a re-conveyance, and also demanded that two additional mortgages (the “Second Mortgage” and “Third Mortgage”, and collectively, the “Mortgages”) placed by the respondent on the property be discharged prior to closing.

The appellant’s lawyer sent an email to the respondent’s lawyer stating that if the respondent refused to re-convey the property, the appellant would commence an application. The respondent’s lawyer advised that they had instructions to accept service of any originating process on behalf of the respondent. The appellant started an application requesting specific performance and the discharge of the Mortgages. After learning that the mortgages were legitimate, the appellant purchased the Second Mortgage and said that he did so to provide evidence that he had the funds to close and to solve the issue of how to recover the excess of the amount of the encumbrances on the property. By the time the application was heard, the appellant simply requested specific performance of the option, with credits for the encumbrances.

The application judge dismissed the application, concluding that the appellant did not meet the requirements of the option because notice was given outside the notice period contemplated by the Agreement, and did not comply with the “time is of the essence” clause. The application judge also found that the appellant was not “ready, willing and able” to close, and that his failure to tender was fatal to his claim for specific performance.

Issues:

(1) Did the application judge misapprehend the facts and the nature of the application?

(2) Did the application judge err in finding that the option had expired?

(3) Is the appellant’s claim for specific performance defeated by his failure to tender?

(4) Is the appellant entitled to the remedy of specific performance under Semelhago v. Paramadevan?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. A review of the record indicated that the application judge misunderstood the nature of the application before him. The application judge’s statements at the outset of his reasons that the appellant was requesting a mandatory injunction requiring the respondent to discharge the mortgages on the property, and that there was no admissible evidence concerning the appellant’s purchase of the Second Mortgage, were incorrect. The Court of Appeal found that it was not clear if this impacted the application judge’s analysis, so the panel did not conclude it was a palpable and overriding error. However, the erroneous statement that there was no admissible evidence concerning the purchase of the Second Mortgage infected the analysis of whether the appellant was ready, willing and able to close.

(2) Yes. The application judge erred in concluding that the option had expired, and this error flowed from his misapprehension of the nature of a “time is of the essence” clause. A “time is of the essence” clause is engaged where there is a time limit stipulated in a contract, meaning that a time limit in an agreement is essential, such that a breach of the time limit will permit the innocent party to terminate the contract. The Court of Appeal stated that “time is of the essence” clauses do not impose a time limit, but rather dictate the consequences that flow from failing to comply with a time limit stipulated in an agreement. While the “time is of the essence” clause in the agreement at issue applied to the option clause, it only applied insofar as the option clause stipulated time limits. The option clause did not stipulate a time limit for exercising the option, and the application judge accordingly erred in finding that the “time is of the essence” clause was engaged with respect to giving notice to exercise the option.

In light of this error, it was open to the Court of Appeal to determine whether the option was exercised within a reasonable period of time, as per SBS Sealants Inc. v. Robroy Industries Ltd., (2002) 59 OR (3d) 257 (C.A.) at para. 16. Based on the circumstances of this case, notice was provided by the appellant within a reasonable time, given that the respondent did not appear interested in timely compliance.

(3) No. The appellant’s claim for specific performance was not defeated by his failure to tender. For a party to be entitled to specific performance, the party must show they are ready, willing and able to close. While tender is the best evidence that a party is ready, tender is not required from an innocent party enforcing their contractual rights when the other party has clearly repudiated the agreement or has made it clear that they have no intention of closing the deal: McCallum v Zivojinovic (1977), 16 OR (2d) 721 at p. 723. (C.A.). The renunciation of a contract may be express or implied. When a party by words or conduct communicates a decision not to proceed to closing, the other party is released from any obligation to tender in order to prove they were ready, willing and able to close: Kloepfer Wholesale Hardware v. Roy, [1952] 2 SCR 465 (S.C.C.); Kirby v. Cameron, [1961] OR 757 (C.A.).

Therefore, the appellant was relieved of the obligation to tender when the respondent clearly communicated a decision not to proceed with the transaction. The appellant’s lawyer requested confirmation that the respondent would close, failing which he would bring an action, and the respondent’s reply was an invitation to commence the action. The respondent had also tried to resell the property in violation of the agreement, and therefore, viewed reasonably and objectively, it was clear the respondent was not going to close. The Court of Appeal dismissed the respondent’s reliance on Pierce v. Empey, [1939] SCR 247 (S.C.C.) for the proposition that all terms of the option as to time must be strictly observed, noting that case did not involve anticipatory repudiation, and does not speak to a situation where the respondent clearly communicated a decision not the proceed with the transaction. The application judge also erred in finding that there was “no evidence” that the appellant had the necessary funds to close. There was evidence regarding the purchase of the Second Mortgage, and evidence given by the appellant’s lawyer on the appellant’s behalf. Based on this, the Court of Appeal was satisfied that the appellant was ready, willing and able to close.

(4) Yes. The Court of Appeal found that the appellant was entitled to specific performance of the option to purchase based on the facts of the case. Per Semelhago v. Paramedevan, [1996] 2 SCR 415 at paras. 21-22, it cannot be assumed that damages for breach of contract for the purchase of sale of real estate will be an inadequate remedy in all cases, and specific performance should not be granted absent evidence that the property is unique. Establishing “uniqueness” requires that the person seeking specific performance show that the property in question has a quality that cannot be readily duplicated elsewhere: Erie Sand and Gravel Ltd. v Seres’ Farms Ltd., 2009 ONCA 709, citing John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 OR (3d) 304 (C.A.).

Since the parties did not address uniqueness, the Court of Appeal reviewed the record and found that the land in question was sufficiently unique to satisfy the test from Semelhago from a subjective and objective standpoint. This was because there could not be a substitute property in another location that would meet the goals of the subdivision plan. It was exactly for the purpose of the subdivision plan that the appellant entered into the option agreement in the first place. The appellant had also provided the municipality with security to be released when the subdivision was fully developed. When the respondent failed to build on the property as he had contracted to do, the appellant could not complete the development of the subdivision. Therefore, specific performance was the only adequate remedy.

Friday Harbour Village Inc. v. 2138746 Ontario Inc., 2018 ONCA 1047

[Doherty, Miller and Paciocco JJ.A.]

Counsel:

P. Flaherty and B. Brammall, for the appellant 2138746 Ontario Inc.

R. Slaght, K. Hayden and J. Shankman, for the respondent Friday Harbour Village Inc.

Facts:

2138746 Ontario Inc. (“213”) was the registered owner of Block C on Plan 1021. Block C is a strip of land informally divided into the Western Strip and the Marina Strip. The Marina Strip stands between parcels of land owned by Friday Harbour Village Inc. (“Friday Harbour) used for a marina and resort business on Lake Simcoe. 213 and Friday Harbour were engaged in a dispute relating to Block C which was brought before a trial judge, who heard together an appeal by way of a trial de novo by 213 of a decision of the Deputy Director of Titles, and an action brought by Friday Harbour concerning the property.

The trial judge found that Friday Harbour had acquired legal and beneficial ownership of the Marina Strip by adverse possession. 213 appealed, submitting that the trial judge had misapprehended the evidence by failing to appreciate that the true owner was able to use the Marina Strip during the period of adverse possession. Second, 213 submitted that the evidence was incapable of supporting the trial judge’s conclusion that there was an impassable barrier across Block C depriving the title owner of access. Third, other means of access to the Marina Strip existed. Fourth, the trial judge had erred in not treating title documents executed by Friday Harbour or its predecessors as acknowledgements of title defeating the adverse possession claim. Friday Harbour submitted that given the right of way, the only permissible use the titled owner could make of the Marina Strip would be to gain access to the other lot owners’ land and the water, and that use was entirely defeated by the impassable barrier preventing access.

213 also appealed the trial judge’s findings that Friday Harbour had not abandoned its titled right of way over the Marina Strip, had a prescriptive easement over the Marina Strip, and that no action in trespass lied against Friday Harbour for its occupation and use of the Marina Strip. Finally, 213 sought leave to appeal the cost order made by the trial judge. Friday Harbour cross-appealed a finding that its right of way over Western Strip had been abandoned.

Issues:

Appeal

(1) Did the judge err in finding that Friday Harbour had established adverse possession over the Marina Strip?

(2) Did the judge err in finding that Friday Harbour had not abandoned its titled right of way?

(3) Did the judge err in finding that Friday Harbour had a prescriptive easement over the Marina Strip?

(4) Did the judge err in finding that no action in trespass lay against Friday Harbour for its occupation and use of the Marina Strip?

(5) Should 213 be granted leave to appeal the cost order made by the judge?

Cross-Appeal

(1) Did the judge err in finding that Friday Harbour had abandoned its right of way over the Western Strip?

Holding:

Appeal and cross-appeal dismissed.

Reasoning:

Appeal

(1) No. The Court saw no errors in the trial judge’s finding of adverse possession over the Marina Strip. The trial judge had recognized the heavier onus on a party claiming adverse possession of property over which it had a right of way, in that it must prove that its use of the property was not simply an exercise of said right of way. The judge found that the evidence demonstrated that between 1963 and 1975, and since then, Friday Harbour’s predecessors in title exercised such complete control and possession over the Marina Strip that they effectively and with intention excluded 213 and its predecessors in title from use of the strip.

The trial judge was entitled on the evidence before her to conclude that the titled owner only used the Marina Strip in the same capacity as other marina patrons, and that the titled owner was excluded qua owner. The Court stated that she committed no legal errors in making these findings. The Court also rejected 213’s submission that the evidence could not support the trial judge’s conclusion that there was an impassable barrier across Block C. Ample evidence supported this finding, including the gate that had been constructed around Block C, the adjoining fence, and the testimony of Mr. Williams that the whole gate area was overgrown with vegetation. The Court found that the other means of access to the Marina Strip relied upon by 213 to oppose the adverse possession were irrelevant, because 213 could not rely upon means of access that would have required trespassing over other Friday Harbour land to defeat Friday Harbour’s claim of adverse possession. What was relevant was whether the titled owner was able to access the disputed land in the ordinary manner. Uncertainty over who had installed the gate did not undermine the trial judge’s conclusions. Finally, the title documents did not constitute acknowledgements that deemed the true owner to be in possession pursuant to the Real Property Limitations Act. The title documents had not been executed for the purpose of acknowledging the title of another, nor were they delivered to 213 or its predecessors as an acknowledgment of title.

(2) (3) (4) No. Given that Friday Harbour had acquired title by adverse possession, it necessarily followed that the appeals that Friday Harbour had not abandoned its right of way, was entitled to a prescriptive easement, and had not committed an actionable tort of trespass were to be dismissed. These outcomes automatically followed from a finding of Friday Harbour’s acquisition of title by adverse possession.

(5) No. The Court stated that the trial judge’s conclusion that Friday Harbour had emphatically won, and her interpretation of the scope of the offer to settle, were hers to make. The Court rejected 213’s submission that even though it asked for almost as much in costs as were ordered against it, the stakes were higher for 213, making the costs claimed by Friday Harbour unfair and unreasonable. There were no strong grounds to believe that the trial judge had erred in exercising her discretion.

Cross-Appeal

(1) No. While the trial judge commented on the imbalance that would arise in finding otherwise, that was not the basis for her decision. The trial judge’s conclusion in finding that Friday Harbour’s right of way over the Western Strip had been abandoned was amply supported by the evidence that Friday Harbour and its predecessors acquiesced for many years to the impassable barrier that prevented them from accessing and using their right of way over the Western Strip, and by the decision to build an alternative roadway.

Hatami v. 1237144 Ontario Inc., 2018 ONCA 1061

[Rouleau, van Rensburg and Roberts JJ.A.]

Counsel:

E. Mazinani, for the appellant

J. A. Caldwell, for the respondent

Keywords: Contracts, Real Estate, Agreements of Purchase and Sale of Land, Forfeiture of Deposit, Anticipatory Breach, Repudiation, Negligent Misrepresentation

Facts:

The appellant claimed for the recovery of a deposit she paid for the purchase of a property. The property was zoned in a residential zone which permitted office space and was used by the respondent as commercial office space. Pursuant to interlocutory orders, the matter proceeded to a hearing by way of summary judgment, where the motion judge dismissed the appellant’s claim that the respondent misrepresented the zoning of the property. He further concluded that there was no breach of the agreement of purchase and sale by the respondent, that there had been anticipatory breach by the appellant that entitled the respondent to retain the deposit, and rejected the appellant’s argument that it was unconscionable for the respondent to retain the deposit.

Issues:

(1) Did the motion judge err in failing to find that the respondent’s agent negligently represented that the property was zoned commercial?

(2) Did the motion judge err in finding that the appellant’s anticipatory breach entitled the respondent to retain the deposit?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court of Appeal found that the motion judge’s finding that the agent never represented the property as being zoned commercial was available on the record before the judge, and he considered all of the relevant evidence.

(2) No. The Court of Appeal found that the motion judge did not err in failing to find that the respondent was not ready, willing and able to close the transaction. The appellant argued that the respondent was in breach of the agreement of purchase and sale by failing to respond to its requisitions to certify on or before closing that the transaction was not subject to HST, and to provide a survey. The Court of Appeal disagreed, and found that the motion judge’s conclusion that the respondent had provided a survey, and that it had properly refused to sign a certificate that HST was not applicable, was fully supported by the evidence.

The Court of Appeal also disagreed with the appellant’s argument that the respondent chose to keep the agreement alive, and thereafter breached the agreement by failing to set a new closing date, and by making a defective tender. Contrary to the appellant’s submissions, the motion judge found that the respondent clearly elected to terminate the agreement for breach of contract, retain the deposit, and preserve its right to sue for damages in response to the appellant’s repudiation. This was clear from an email sent late on the day of closing by the respondent’s counsel. The respondent’s tender the next day, as found by the motion judge, was simply done out of an abundance of caution and was not necessary.

McHale v. Lewis, 2018 ONCA 1048

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

G.M., on his own behalf and on behalf of plaintiffs

S. Mathai and N. Ghobrial, for the respondents/appellants by way of cross-appeal

Facts:

The plaintiffs and the defendants in four separate actions appealed the decision of the motion judge. The plaintiffs appealed the motion judge’s decision to strike their pleadings alleging conspiracy on the part of the defendants, without granting them leave to amend their statements of claim (the “Appeal”). The defendants appealed the motion judge’s refusal to strike the plaintiff’s claims for false arrest in two of the actions. In the two aforesaid actions, the statements of claim were issued after the expiry of the presumptive limitation period running from the date of the arrest (the “Cross-Appeal”).

Each of the four actions has in common an allegation that a plaintiff was falsely arrested for walking on a public street while engaged in peaceful expressive activity. The plaintiffs alleged that these arrests were acts in furtherance of a broad, overarching conspiracy amongst senior police officers and others to deliberately violate their Charter rights, shut down their expressive activity and falsely arrest them.

With respect to the Appeal, the motion judge observed that the pleadings failed to claim damages for conspiracy. The motion judge held that “allowing the pleading of an alleged conspiracy or conspiracies would expand the complexity and expense of the litigation while providing little or no probative value and should therefore be struck under Rule 25.11 [of the Rules of Civil Procedure; citing Javitz v BMO Nesbitt Burns Inc (2011), 105 OR (3d) 279 (Ont Sup Ct J) (“Javitz”)].”

With respect to the Cross-Appeal, the motion judge refused to strike the plaintiff’s claims for false arrest on the ground that the limitation period had expired because the defendants had not yet delivered a statement of defence. The motion judge observed that it remained an open question whether discoverability could ever be raised in response to a Limitations Act defence to a claim for damages for false arrest.

Issues:

(1) Did the motion judge err in striking the plaintiff’s pleadings alleging conspiracy without granting them leave to amend their statements of claim?

(2) Did the motion judge err in refusing to strike the plaintiff’s claims for false arrest notwithstanding the expiry of the presumptive limitation period?

Holding:

Appeal allowed; cross-appeal dismissed.

Reasoning:

Appeal

(1) Yes, the motion judge erred in striking the plaintiff’s pleadings alleging conspiracy without granting them leave to amend their statements of claim.

The motion judge’s reliance on Rule 25.11 and Javitz was misplaced. In this case, pleading the very cause of action asserted and the factual underpinnings of that cause of action is not a collateral matter and in itself cannot be a pleading that “may prejudice or delay the fair trial of the action” within the meaning of Rule 25.11.

The merger doctrine did not justify striking the plaintiff’s pleadings. In this case, the claims in conspiracy are not redundant of the claims for false arrest but go beyond the actions of the individual arresting officers at the time of the arrests, which gave rise to the claims of false arrest and associated Charter violations. The pleadings targeted a broader group of participants in the alleged conspiracy and asserted that the facts establishing the existence of this conspiracy arose before and after the arrest.

The application of the Limitations Act did not justify striking the plaintiff’s pleadings. If the defendant is successful at trial in its Limitations Act defence on a claim for damages for false arrest, it is not clear that a claim based on a tort of conspiracy would also be statute barred. Moreover, if the claims based on false arrest are statute barred, the claim in damages for conspiracy may not be redundant.

Further, the existence of a conspiracy may be a factor affecting the assessment of damages for the violation of rights guaranteed by the Charter. Where it is proven that government actors conspired together to violate Charter rights, that conduct may increase the weight given to deterrence in the assessment of damages. This may also be a factor in the assessment of punitive damages.

Last, the issue of redundancy in the claims should be left to the trial judge. A conspiracy claim should be allowed to be pleaded along with other torts. The merger doctrine should be applied only at the end of the trial when it is known whether the plaintiff has been successful on the torts and whether there is anything added by the conspiracy claim.

Relying on Rule 26.01, the Court of Appeal held that the defendants would suffer no prejudice if, at this stage, before a statement of defence has been delivered, the plaintiffs are permitted to quantify the damages claimed for conspiracy. Thus, leave was granted to the plaintiffs to amend their statements of claim.

Cross-Appeal

(2) No, the motion judge did not err in refusing to strike the plaintiff’s claims for false arrest notwithstanding the expiry of the presumptive limitation period. The motion judge was correct to conclude that this case was not one of the rare cases where the claims should have been struck as statute barred before a statement of defence was delivered.

In the absence of a pleading from the plaintiffs responding to a Limitations Act, 2002 defence, it is not known at this stage to what extent the plaintiffs will rely on discoverability beyond the date of the arrests to delay the start of the limitation period. In this case, the motion judge did not have the benefit of pleadings to structure consideration of Limitations Act, 2002 issues. The Court of Appeal held that this was a sufficient basis to uphold the motion judge’s decision to reject the defendant’s motion as premature. Thus, the cross-appeal was dismissed.

The causes of action for false arrest and associated Charter violations are inextricably intertwined with the claims for damages for conspiracy, which are not alleged to be statute barred. Given that claims for damages for conspiracy may be pleaded, it may be that the best place to address the Limitations Act, 2002 defences is at trial, with the benefit of pleadings and a full factual record. There may be Charter violations established independently of the false arrest, and it is not clear how delayed discoverability might affect those claims.

Haworth v. Haworth, 2018 ONCA 1055

[Doherty, Miller and Fairburn JJ.A]

Counsel:

B. Haworth, in person

M.A.B Frederick, for the respondent

Facts:

The parties separated in 1985 and agreed on minutes of settlement in 1991. That agreement was reflected in a divorce judgment issued that same year. The respondent later brought a motion to vary the divorce judgment, but the appellant did not appear. The respondent asked for changes to various provisions, including clauses relating to insurance and security for payment of spousal support. The motion was granted, and the divorce judgment was varied on October 5, 2015 (“the 2015 order”).

In the fall of 2017, the respondent brought a further motion to change the 1991 divorce judgment. This time he asked to be relieved of his spousal support obligations. The appellant opposed that motion and, at the same time, sought to have the 2015 order varying the divorce judgment set aside. The respondent’s motion to decrease spousal support was successful, with spousal support being reduced from $4,000/month to $1/month. The appellant’s motion to have the 2015 order set aside was dismissed.

Issues:

(1) Did the motion judge err in dismissing the appellant’s motion to have the 2015 order set aside?

(2) Did the motion judge err in granting the respondent’s motion to decrease spousal support?

Holding:

Appeal allowed in part.

Reasoning:

(1) No. The appellant advanced the same argument in the Court of Appeal that she did before the motion judge, arguing that she did not receive procedural fairness given that she had no notice of the original motion to change.

The Court of Appeal rejected this argument, finding that the motion judge gave numerous reasons for refusing to set aside the 2015 order. He was satisfied that the appellant knew about the hearing long before it occurred, and was properly served with all motion materials. Moreover, the motion judge found that the appellant did not have an arguable defence on the merits. Nor did she move promptly to have the judgment set aside.

(2) Yes. Although the Court of Appeal rejected the appellant’s argument that there was no basis upon which the support obligation could be changed, the Court nevertheless concluded that the motion judge erred in two ways in arriving at the change from $4,000 to $1 per month: (a) in considering what constitutes a material change in circumstances; and (b) in failing to give any deference to the original order of support.

First, the Court of Appeal took issue with the motion judge’s characterization of the appellant’s decision not to seek employment post-separation. The clear wording of the divorce judgment was that spousal support would continue to death. The appellant was entitled to rely upon that judgment. The respondent waited far too long to raise the appellant’s decision not to seek gainful employment until an age when she was effectively precluded from correcting the situation.

However, the Court of Appeal did agree with the motion judge that the respondent’s substantial decrease in annual income (from over $250,000 per year to $65,000 per year) met the threshold for variation. While the agreement specified support for life for the appellant, it also expressly contemplated a salary level far exceeding what the respondent would receive in retirement.

Second, with respect to deference to the original support order, the Court of Appeal concluded that the motion judge erred in that approach to the variation. Conspicuously absent from his reasons was an acknowledgement that the original support order – assumed to itself be in compliance with the objectives of s.17 of the Divorce Act – expressly provided for spousal support for life. Referring to the Supreme Court decision in Miglin v Miglin, the Court of Appeal stressed that the spousal support order reflected what had been agreed upon by the parties and that order was only one component of a larger agreement.

The variation to spousal support had to be considered against the backdrop of the original order which was arrived upon in the context of a broader agreement. The Court of Appeal thus concluded that the motion judge should have used the original support order and varied it only to the extent required by the change. The respondent’s decreased income, combined with the motion judge’s finding that the appellant does not face economic hardship, were relevant considerations in determining the extent of the variation.

Accordingly, the Court of Appeal concluded that it would reduce the previously ordered spousal support in proportion with the respondent’s decreased income. Relying on the Spousal Support Advisory Guidelines (SSAGs) as guidance, the Court ultimately concluded that $850 per month for life would be an appropriate amount of spousal support in the circumstances. The Court of Appeal therefore varied the support order accordingly.

Vista Sudbury Hotel Inc. (Rainbow Value Centre) v. The Oshawa Group Limited, 2018 ONCA 1075

[Doherty, Miller and Paciocco JJ.A.]

Counsel:

B. Weintraub and K. Surko, for the appellants

N. Henderson and J. Manoryk, for the respondent

Keywords: Contracts, Real Property, Commercial Leases, Interpretation, Continuous Use Clauses

Facts:

The appellants own a shopping mall, in which the respondent rented space and operated a retail store for many years. In February 2004, the respondent advised the appellants that it intended to cease operations in May 2004. The respondent’s lease did not terminate until April 2005. The appellants sued the respondent, claiming that he respondent was obliged under the “continuous use” clauses in the lease to operate the store business until the lease ended in April 2005. The respondent proceeded as planned and closed the store in May 2004. The respondent paid rent, maintenance, and repair obligations under the lease until the termination date in the lease.

The appellants alleged that the respondent’s premature departure had caused significant damages to the appellants beyond the amounts owed for rent, repair, and maintenance under the lease. The trial was eventually ordered bifurcated. The liability phase proceeded in late 2017. The trial judge found that, under the terms of the lease, the respondent was entitled to close its store when it did. He also rejected the other arguments advanced by the appellants. Those arguments were not germane to the outcome of the appeal here.

The appellants appealed from the trial judge’s dismissal. At the conclusion of oral argument, the court advised the parties that the appeal would be allowed with reasons to follow.

Issues:

(1) Did the trial judge err in his interpretation of the lease?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The dispute over the interpretation of the lease focused mainly on the interaction of the “uses” clause in s. 8.01, and the “hours of operation” clause in s. 8.01.1.

The Court observed that section 8.01 expressly required the respondent to “continuously, actively and diligently carry on [business]” in the leased premises for the term of the lease. The continuous use obligation spelled out in s. 8.01 was repeated in very similar language in s. 8.05, which was headed “Continuous Use”. Unless modified by some other provision in the lease, the language of ss. 8.01 and 8.05 could leave no doubt that the respondent was obliged to carry on business on the leased premises throughout the term of the lease.

The Court rejected the trial judge’s finding that the continuous use obligation was qualified by the “hours of operation” clause in s. 8.01.1. Section 8.01.1 required the respondent to be open for business during “minimum hours of business” on any day when 80 per cent of the rentable area of the commercial part of the mall was open and the “Department Store” was open. The term “Department Store” in the lease referred to the Eaton’s store in the mall, which had ceased operation in November 1999 when Eaton’s went bankrupt. No tenant had replaced Eaton’s in the mall as of February 2004.

The Court of Appeal found that on a plain reading, s. 8.01 imposed an obligation on the respondent to carry on business in the leased space for the term of the lease. On an equally plain reading, s. 8.01.1 was directed at setting the respondent’s hours of operation, and not at the requirement that the respondent carry on business. There was a fundamental commercial difference between a term directed at the hours of the day during which a store must open and a requirement that the store carry on business on a continuous basis.

The Court of Appeal similarly rejected the argument that s. 8.01.1 in any way contradicted s. 8.01, explaining that the first part of s. 8.01.1 addressed hours of daily operation, while the remaining provisions in that section addressed circumstances which justified temporary interruptions in the carrying out of the respondent’s business. Reading s. 8.01 as subject to s. 8.01.1 did not require reading s. 8.01 – much less s. 8.05 – out of the agreement.

Accordingly, the Court of Appeal remitted the matter to the trial court for a determination of the damages, if any, suffered by the appellants as a result of the respondent’s breach of contract.

Mullin v. Sherlock, 2018 ONCA 1063

[Pepall, Roberts and Miller JJ.A.]

Counsel:

H. Hansen, for the appellant

R.M. Halpern and J. Brown, for the respondent

Facts:

The parties cohabited for approximately 13 years. They married in September 2012, and separated less than one year later on June 28, 2013. There were no children of the marriage. The respondent commenced an application against the appellant, claiming spousal support and equalization of net family property, asserting a joint family venture and an entitlement to the value the appellant’s business. The respondent subsequently served a detailed Request for Information on the appellant, seeking extensive personal and corporate disclosure.

After several orders on consent requiring further disclosure and the questioning of the appellant, the appellant had nevertheless failed to provide sufficient disclosure and failed to provide answers to undertakings. A motion judge then ordered that the appellant provide disclosure and provide answers to all questions asked at his questioning (including undertakings and refusals), failing which his pleadings would be struck.

The appellant failed to complete these steps, following which the respondent brought a motion to have his pleadings struck. The respondent was successful, as a result of which the motion judge gave the respondent leave to proceed to an uncontested hearing. However, the motion judge gave the appellant limited participation rights, allowing him to attend at and participate in a settlement conference, receive notice of any step in the proceeding taken by the respondent, attend any step in the proceeding (including the trial) as an observer, and make closing submissions at the trial with leave of the trial judge. By contrast, the appellant would not have the right to bring any motion or application, question the respondent or any other person, seek disclosure from her or any other person, or participate in any step in the proceeding except as described.

Issues:

(1) Did the motion judge err in striking the appellant’s pleadings?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court began by identifying the relevant legal framework applicable to striking out pleadings for failure to obey a disclosure order in the family law context, concluding that a motion judge must first be satisfied that there has been non-compliance with the court order before considering several factors in determining which remedy under Rule 1(8) of the Family Law Rules would be appropriate in the circumstances.

The Court noted that in determining the appropriate remedy, a judge will have to consider the following factors: the relevance of the non-disclosure, including its significance in hindering the resolution of the issues; the context and complexity of the issues, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay; the extensiveness of existing disclosure; the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and any other relevant factors.

Turning to the appeal at hand, the Court noted that the motion judge did not strike the appellant’s pleadings solely on the basis of his violation of the disclosure order. Rather, the motion judge identified the issues as being whether the appellant had failed to provide necessary disclosure and had answered the questions he undertook or refused to answer. If so, the court considered whether it should strike his pleadings, order him to comply with his undertakings, order him to attend for further questioning, or adjourn the motion until he had complied and finished being questioned. Thus, the motion judge did properly consider alternative remedies.

The Court similarly noted that although the appellant provided an affidavit required by the disclosure order, he did not answer all of the undertakings and refusals ordered to be answered. Although the opportunity for further questioning of the appellant was available, the respondent was not required to resort to further questioning.

In having recourse to Rule 1(8) of the Family Law Rules, the motion judge assessed whether the non-disclosure was relevant, and determined that it was. The motion judge was familiar with the complexity of the case and the disclosure made, but found that the appellant had repeatedly breached court orders for disclosure and had done so willfully in a deliberate attempt to frustrate the respondent’s efforts to establish her claims. The repeated orders and the repeated non-compliance readily permitted such a conclusion.

However, the Court noted that the motion judge failed to identify which pleading he was striking out, contrary to the requirement under Rule 1(8)(c). Accordingly, the Court varied the motion judge’s order to strike out the appellant’s Answer, as well as any other documents filed by the appellant (subject to the trial judge’s discretion as to whether any are relevant and ought to be admitted).

Further, the Court found that the motion judge erred in his determination of the parameters of the appellant’s trial participation. Accordingly, the Court of Appeal varied the order to permit the appellant to make an opening statement, cross-examine the respondent and the respondent’s witnesses at trial and make closing submissions without the need for leave of the trial judge. Any additional participation would only be as permitted by the trial judge.

Accordingly, though the appellant would no longer be able to pursue his own claims via his Answer, he would nevertheless remain able to test the respondent’s claims.

Paulus v. Fleury, 2018 ONCA 1072

[Feldman, Pardu and Roberts JJ.A]

Counsel:

R. Colautti, for the appellants

V. Santini and A. Tymec, for the respondent

Keywords: Contracts, Settlements, Enforcement, Rescission, Fraud, Civil Procedure, Pretrials, Duties of Counsel, Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320

Facts:

The plaintiffs and the defendant were involved in a car accident. At the parties’ pretrial conference, the plaintiffs’ counsel made submissions indicating that he had an “independent” witness to the collision that had resulted in injury to his clients. He described the witnesses as “good people … independent … solid … good witnesses”.

The parties agreed to settle the claim. However, immediately after the pretrial, the defendant’s counsel got a call from his own investigator indicating that tax, mortgage and insurance records revealed that it was likely that the witnesses’ son lived across the street from the plaintiffs. The defendant’s counsel wrote to the plaintiffs’ counsel the next day to repudiate the settlement.

In an attempt to have the motion judge enforce the settlement, the plaintiffs argued that when their counsel described the witnesses as independent, he meant to indicate that they could give evidence extrinsic to that of the plaintiffs. The motion judge rejected this interpretation, concluding that counsel had given the impression that the witnesses were “neutral witnesses, who had no connection to anyone involved in the case, and therefore had no reason to favour either side with their evidence, and would be credible and reliable witnesses at trial.” The motion judge found that plaintiffs’ counsel knew the statement was untrue or was reckless as to its truth. He also found that counsel had a duty to opposing counsel not to knowingly make misleading statements.

The motion judge ultimately held that the statement by plaintiffs’ counsel amounted to civil fraud. As a result, the defendant was induced to settle the case in reliance on the false representation. He accordingly refused to enforce the settlement.

The plaintiffs appeal that decision.

Issues:

(1) Did the motion judge err in finding the statement by plaintiffs’ counsel to constitute civil fraud?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The statement by plaintiffs’ counsel did not amount to civil fraud. There was a reasonable basis for his statement, and the statement was made in good faith.

There are five elements that are required to establish civil fraud. Those are:

A false representation of fact by the defendant to the plaintiff;
Knowledge the representation was false, absence of belief in its truth, or recklessness as to its truth;
An intention the plaintiff act in reliance on the representation;
The plaintiff acts on the representation; and
The plaintiff suffers a loss in doing so.

The fact that a lawyer is mistaken is not a basis, in itself, for a finding of misconduct. Statements or submissions made by counsel do not amount to civil fraud if either there is a reasonable basis for them, or if counsel is not knowingly misleading the court, i.e. is acting in good faith. The statements by counsel were expressions of opinion for which there was a reasonable basis, given counsel’s knowledge at the time of the pretrial. There was no familial relationship between the plaintiffs and the witnesses, no indication of any criminal record that might undermine the witnesses’ credibility, or any other history of dishonesty.

There was also no basis to conclude that plaintiffs’ counsel did not sincerely and in good faith describe the witnesses in the manner he did. Mistakes by lawyers are not an infrequent occurrence. Counsel may lose credibility with the court and their colleagues if they are not scrupulously careful about factual assertions, or if they advance arguments with no reasonable foundation, but these should not amount to civil fraud in this context unless there is neither a reasonable basis for the statements nor a good faith belief in their accuracy.

Further, it would be unreasonable to conclude that plaintiffs’ counsel intended opposing counsel to rely on his submission.

SHORT CIVIL DECISIONS

Colenbrander v. Savaria Corporation, 2018 ONCA 1057

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

R. A. Morris, for the appellant

H. R. Bennett, for the respondents

Keywords: Appeal Book Endorsement, Jurisdiction, Good Faith

Greensides v. Kawartha Lakes (City), 2018 ONCA 1056

[Strathy C.J.O., Lauwers and Zarnett JJ.A]

Counsel:

S. Grillone, for the appellant

A. Sinnadurai, for the respondent

Keywords: Appeal Book Endorsement, Notice of Abandonment

Hart v. Balice, 2018 ONCA 1065

[Strathy C.J.O., Lauwers and Zarnett JJ.A.]

Counsel:

M. H., acting in person

A. Ferguson, for the respondent

Keywords: Civil Procedure, Orders, Enforcement, Liens, Writs of Seizure and Sale

Koolatron v. Synergex Corporation, 2018 ONCA 1058

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

No one appearing for the appellants

G. Smits, for the respondent

Keywords: Appeal Book Endorsement

Robson v. The Law Society of Upper Canada, 2018 ONCA 1076

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

Counsel:

P. R., acting in person

R. Watson, for the appellant (on one issue only)

S. Dewart and I. McKellar, for the respondents

CRIMINAL DECISIONS

R. v. Coussons, 2018 ONCA 1043

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

D. Doucette, as duty counsel

M. C., in person

J. S. Joy, for the respondent

Keywords: Criminal Law, Second Degree Murder, Sentencing

R. v. Eid, 2018 ONCA 1044

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

R. E., in person

G. Zaman, for the respondent

Keywords: Criminal Law, Appointing Counsel

R. v. Wiafe, 2018 ONCA 1045

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

D. Doucette, as duty counsel

A. W., in person

G. Zaman, for the respondent

Keywords: Criminal Law, Fraud Over $5,000

R. v. D.E.S., 2018 ONCA 1046

[Pepall, Paciocco and Harvison Young JJ.A.]

Counsel:

S. M. Foda and K. Davidson, for the appellant

J. Stone, for the respondent

R. v. J.E., 2018 ONCA 1049

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

M. Bojanowska, for the appellant

A. Hotke, for the respondent

Keywords: Criminal Law, Assault, Sexual Assault

R. v. Ranglin, 2018 ONCA 1050

[Doherty, Brown and Trotter JJ.A.]

Counsel:

D. Doucette, A. Furgiuele and J. Belton, for the appellant

M. Bernstein, for the respondent

R. v. D.M., 2018 ONCA 1060

[Juriansz, Benotto and Trotter JJ.A.]

Counsel:

W. Cunningham, for the appellant

A. Terrana, for the respondent

Keywords: Criminal Law, Evidence, Admissibility, Video-Recorded Statement, Credibility, Criminal Code, s. 715.1

R. v. France, 2018 ONCA 1052

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

J. France, in person

N. Gorham, for the appellant

B. Wassenaar, for the respondent

Keywords: Criminal Law, Manslaughter, Gardiner Hearing

R. v. Brown, 2018 ONCA 1064

[Pardu, Brown and Huscroft JJ.A.]

Counsel:

B. Vandebeek, for the appellant

K. Wilson, for the respondent

R. v. McKenna, 2018 ONCA 1054

[MacPherson, Huscroft and Nordheimer JJ.A.]

Counsel:

M. Johnston and M. Day, for the appellant

L. Schwalm, for the respondent

R. v. Stubbs, 2018 ONCA 1068

[MacPherson, Pardu and Brown JJ.A.]

Counsel:

C. Verner and E. Taché-Green, for the appellant

K. Papadopoulos, for the respondent

Keywords: Criminal Law, Second Degree Murder, Defences, Provocation, Sentencing, R. v. Luciano, 2011 ONCA 89

R. v. Upjohn, 2018 ONCA 1059

[Doherty, Rouleau and Paciocco JJ.A.]

Counsel:

M. Rupic, for the appellant

G. R. Clewley, for the respondent

Keywords: Criminal Law, Breach of Trust, Public Officials, Criminal Code, s. 122, R. v. Boulanger, 2006 SCC 32

R. v. Lee, 2018 ONCA 1067

[Juriansz, Benotto and Trotter JJ.A.]

Counsel:

J. Couse, for the appellant

M. Comiskey, for the respondent

R. v. Wheeler, 2018 ONCA 1069

[Juriansz, Benotto and Trotter JJ.A.]

Counsel:

F. Addario and J. Foy, for the appellant

M. Flanagan, for the respondent

Keywords: Criminal Law, Sexual Interference, Criminal Code, s. 177.2(2)

R. v. Beaudoin, 2018 ONCA 1071

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

P. Copeland, duty counsel

A. Baiasu, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Aggravated Sexual Assault, Sentencing, Mitigating Factors

R. v. J.R., 2018 ONCA 1070

[Feldman, MacPherson and Nordheimer J.A.]

Counsel:

D. Doucette, for the appellant

L. Bolton, for the respondent

Keywords: Appeal Book Endorsement, Criminal Law, Criminal Code, s. 743.2.1

R. v. Vining, 2018 ONCA 1078

[MacPherson, Pardu and Brown JJ.A.]

Counsel:

M. Godoy for the appellant

J. Sone for the Crown, respondent

Keywords: Criminal Law, Theft, Dangerous Driving, Failing to Stop for Police, Mischief, Evidence, Vetrovec Witness, R .v. Wadworth, 2009 ONCA 716

Provincial Offences

York (Regional Municipality) v. McGuigan, 2018 ONCA 1062

[MacFarland, Watt and Paciocco JJ.A.]

Counsel:

A. Little, for the appellant

C. Bendick, for the respondent

Facts:

The appellant (supported in the appeal by the Ontario Paralegal Association or “OPA”) was charged with speeding. The officer had measured the speed of the appellant’s vehicle with a Genesis Handheld Directional traffic radar device (the “GHD”). Upon deciding to fight the charge and hiring a paralegal, the paralegal made a written request to the prosecutor for disclosure of the “testing and operating procedures” for the GHD.

Due to the administrative weight of complying with such disclosure requests, several years prior, the prosecutor’s office took two steps to stem the number of disclosure requests it had to respond to. First, it provided copies of the user manuals for speed measuring devices (the “manuals”) to paralegals that frequently appeared in traffic court. The appellant’s paralegal had received a copy of the 2008 GHD manual. Second, the prosecutor’s office collected manuals for all devices and provided notice that these manuals could be viewed in the prosecutor’s office.

Relying on R v Jackson, 2015 ONCA 832, the prosecutor felt that it need not disclose excerpts from the manuals. It took the position that those who want them must bring third party records applications to obtain court orders for production from the third party record holder, in this case the York Regional Police. Thus, the prosecutor declined the paralegal’s request for disclosure and indicated he could view the manuals at the prosecutor’s office, which at the time included a 2010 GHD manual.

The appellant’s paralegal chose to neither attend the prosecutor’s office to view the 2010 GHD manual nor to rely on his copy of the 2008 GHD manual. Instead, he made written requests for disclosure of the 2010 GHD manual, both of which were ignored. At trial, the appellant’s paralegal brought a motion to stay the proceedings for non-disclosure. The prosecutor told the justice of the peace that the office was no longer disclosing pages from the manuals because this process was burdensome and argued that the appellant should bring a third party record application.

The justice of the peace ruled that the appellant had the right to the disclosure that he claimed, ordered disclosure of the testing information and denied the stay of proceedings. In response, the prosecutor sought a direct ruling to stem similar requests. It brought a certiorari application to the Superior Court, seeking to quash the justice of the peace’s decision.

Despite argument from the OPA (which was given leave to intervene) which objected to the certiorari application, the application judge heard the application and ruled in favour of the prosecutor. The application judge found that the justice of the peace made a legal error in holding that the manual was subject to first party disclosure, and she quashed the disclosure order. The application judge reasoned that the manuals fell outside of the first party disclosure regime because the manuals were not “fruits of the investigation.”

Issues:

(1) Did the application judge err in granting a certiorari order without a jurisdictional error, contrary to the Provincial Offences Act (the “Act”), s 140(1)?

(2) Did the application judge err in failing to consider the privative clause in the Act, s 141(3)?

(3) Did the application judge err in granting certiorari without considering whether a substantial wrong or miscarriage of justice had occurred, as required by the Act, s 141(4)?

(4) Did the application judge err in finding that the manual directions for the testing and operation of a speed measuring device relied on by the prosecutor were not subject to first party disclosure?

(5) If manual excerpts pertaining to testing and operation are subject to first party disclosure, was disclosure adequately made by the prior delivery of a manual to the appellant’s representative, or by making the manual available for viewing?

Holding:

Appeal allowed.

Reasoning:

(1) Yes, the application judge erred in granting a certiorari order without a jurisdictional error.

(2) Yes, the application judge erred in failing to consider the privative clause in the Act.

(3) Yes, the application judge erred in granting certiorari without considering whether a substantial wrong or miscarriage of justice had occurred, as required by the Act.

The principles controlling the availability of certiorari to quash the order of the justice of the peace included both statutory provisions and common law limitations. With respect to common law limitations, certiorari is an extraordinary remedy issued by the Superior Court to superintend the process of courts of limited jurisdiction, ensuring that those courts do exercise their jurisdiction but do not exceed its limits. Such a remedy is discretionary and does not issue as of right. Where a party seeks certiorari, certiorari lies only for jurisdictional errors, which include denials of natural justice or procedural fairness.

Further impediments limit the availability of certiorari when what an applicant seeks is an order quashing a pre-trial ruling. Generally, a party should await final disposition of the proceeding and, if adverse, appeal that disposition, asserting error in the pre-trial ruling as a ground of appeal. As a general rule, the Court of Appeal does not permit appeals from rulings on pre-trial or in-trial applications until proceedings have concluded with an adjudication on the merits.

Turning to the statutory limitations, applications for certiorari are rarely granted under the Act. Subsection 140(1) of the Act confirms the discretionary nature of the extraordinary remedies listed therein, none of which issue as of right. Further, ss 140(1) makes clear that the relief available on certiorari is co-extensive with the relief available on certiorari otherwise.

Together, ss 135(1) and 141(3) of the Act limit the availability of certiorari and provide a right of appeal instead. Further, ss 141(3) makes certiorari unavailable for any “conviction, order or ruling” that can be appealed. Moreover, ss 141(4) limits certiorari to cases in which the reviewing court finds that a substantial wrong or miscarriage of justice has occurred.

A justice of the peace sitting as a provincial offences court under Part I or Part II of the Act is entitled to determine questions of relevance, materiality and admissibility of evidence and has the authority to grant or refuse to make disclosure orders. The justice of the peace had the jurisdiction to determine whether the disclosure sought fell within the first party or third party disclosure regime. The jurisdiction of the justice of the peace to determine these issues was not dependent upon the correctness of her decision; jurisdiction and the correct exercise thereof is not the same thing.

Provided courts of limited jurisdiction do not exceed the scope of their authority, certiorari is not available to the parties to a proceeding to control the manner in which the authority is exercised. Generally, erroneous pre-trial rulings, such as those relating to disclosure, are errors of law within jurisdiction, at least where the errors do not have a fundamentally important impact on the fairness of the proceedings. Errors within jurisdiction are appealable at the end of the trial as part of an appeal from acquittal, conviction, or sentence.

The application judge was not mindful of the established principle that, absent exceptional circumstances, a Superior Court ought not to exercise extraordinary remedy jurisdiction where the application is brought in the course of ongoing proceedings. The application judge failed to consider the injunction against relief on certiorari imposed by s 141(4) of the Act. The remedy is only available where the order under review has caused a substantial wrong or miscarriage of justice. The disclosure order made in this case fell well short of the standard required to overcome the bar in s 141(4).

The foregoing reasons were sufficient to set aside the application judge’s decision and to reinstate the disclosure order made by the justice of the peace. However, the Court of Appeal decided not to rest its decision on these grounds alone after hearing full argument on an issue of significance in the prosecution of speeding offences across Ontario. As set out below, it therefore commented on appropriate disclosure of operating manuals of radar guns in speeding cases.

(4) Yes, the application judge erred in finding that the manual directions for the testing and operating of a speed measuring device relied on by the prosecutor were not subject to first party disclosure.

To be eligible for disclosure, information and materials must be relevant. Common between each disclosure mechanism is that if the information or material lacks logical relevance, no right of disclosure will exist. “First party disclosure” refers to information or material the Crown is obliged, on request, to deliver to the defendant without the need for an application to the court. Material will be subject to first party disclosure only if it is “in the possession or control of the prosecuting Crown.” “Third party disclosure” refers to information that an accused requires from a third party, on application.

Two ways that information can become subject to first party disclosure, thereby avoiding the need, delay, expense and formality of a third party record application, are (1) the “fruits of the investigation,” or (2) as “obviously relevant” information. The “fruits of the investigation” posits a relationship between the subject-matter sought and the investigation that leads to the charges against an accused. It does not matter whether the Crown intends to rely on the fruits of the investigation at trial and the disclosure obligation includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. The first party disclosure obligation cannot be defeated by leaving the fruits of the investigation in the hands of the investigating police force.

The “obviously relevant” standard invokes a disclosure obligation where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting. This disclosure obligation applies to all obviously relevant information or material possessed by the investigating police force. “Without prompting” means that there should be no need for the accused to bring a third party record application to secure obviously relevant information in the hands of the investigating police force.

A third way that information can become subject to first party disclosure obligations is where the information is relevant and comes into the possession of the prosecuting Crown. In cases where the Crown is put on notice of the existence of other relevant information in the hands of other Crown agencies or departments, the Crown has a duty to inquire about that relevant information and to obtain it if reasonably feasible to do so. This obligation exists because the Crown is not an ordinary litigant, but a minister of justice. If the Crown is denied access after making a good faith effort to secure such information, it is to advise the defence that the request was denied. The accused’s remedy lies in pursuing a third party record application.

In this case, the manufacturer’s testing and operating procedures for a speed measuring device were relevant and must have been disclosed. By presenting the results obtained by a speed measuring device, the prosecutor is necessarily representing that those results are a reliable measure of vehicle speed. Evidence which casts doubt on that representation is therefore relevant.

The application judge was correct in finding that the manual excerpts of the testing and operating procedures were not the “fruits of the investigation” but erred in failing to recognize that the testing and operating procedures qualified for first party disclosure through the “obviously relevant” standard. While not in the investigative file, this information was so inextricably linked to the speed measuring device used by the charging officer to identify the appellant’s alleged offence that it was required to be disclosed because it related to the accused’s ability to meet the Crown’s case.

The fact that the device that created the evidence of recorded speed was designed to be used according to instructions links those instructions to the evidence, making those instructions subject to first party disclosure. Information that plays a central role in the integrity of evidence gathered by a prosecutor in an investigation is obviously relevant and therefore subject to first party disclosure even though that information was not itself created, produced or located during the investigation. Thus, the manufacturer’s testing and operating procedures linked to a speed measuring device were central to the integrity of the reading secured by the traffic officer which used that speed measuring device and therefore were obviously relevant and subject to first party disclosure.

In the result, even if the prosecutor was not in possession of the manuals, the investigating police force was under a correlative obligation to furnish this information to the prosecutor so that the prosecutor could fulfill its disclosure obligation to the appellant. As it happened, the prosecutor was already in possession of the material that was the subject of the disclosure request. For the foregoing reasons, the application judge erred and the manual excerpts were subject to first party disclosure obligations.

(5) No, disclosure was not adequately made by the prior delivery of a manual to the appellant’s representative, or by making the manual available for viewing. Neither of these mechanisms satisfied the prosecutor’s disclosure obligation.

The prior delivery of the manual to the appellant’s paralegal was insufficient to fulfill the prosecutor’s disclosure obligation because the disclosure obligation was owed to the appellant and could not have been discharged by disclosure on other occasions to another party.

The invitation to view the manual was also insufficient to fulfill the prosecutor’s disclosure obligation. Meaningful disclosure occurs where the defendant can capture a precise record of the information, where the information can be captured and shared in consulting and preparing an expert witness, and where the defendant has access to a copy of that information during trial so that it can be used during the cross-examination of the traffic officer, or as an exhibit. This was not a case where the interests of justice required inspection instead of production.

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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Table of Contents

CIVIL DECISIONS

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email