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Good evening.

There were five substantive civil decisions released by the Court of Appeal for Ontario this week.  In two of them, the Court continued to provide guidance on the “valid defence” analysis to be undertaken pursuant to the Anti-SLAPP provisions of section 137.1 of the Courts of Justice Act.

In Lascaris v B’nai Brith Canada, 2019 ONCA 163, the Court clarified that on a motion to dismiss under s. 137.1 of the Courts of Justice Act, the responding party’s burden under s. 137.1(4)(a)(ii) is to show that it is possible that a defence would not succeed as opposed to showing that a defence has no hope of success.  In applying this standard, the Court reversed the motion judge’s dismissal of the defamation action.

In Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, the Court held that Bondfield (which, as an aside, is now under CCAA protection) was only required to show that a reasonable trier of fact could conclude that the Globe did not have a valid defence.  The Court held that Bondfield would meet that onus if it showed that a reasonable trier of fact could reject all of the various defences put in play by the Globe.

In Endean v St Joseph’s General Hospital, 2019 ONCA 181, the Court reviewed the nature of Pierringer Agreements and Orders and confirmed that, in the context of a Pierringer Order, the Court’s decision in Taylor v Canada (Health), 2009 ONCA 487, does not stand for the general proposition that fault in a negligence action may be apportioned to non-parties. In a Pierringer settlement, the non-settling defendant is only entitled to a reduction of the damages by the amount of fault apportioned to settling defendants, not non-parties. The Court also confirmed that the two-year limitation period in the Public Hospitals Act is not subject to a discoverability principle.

Other topics covered this week included insurance in the MVA context, nuisance and intrusion upon seclusion.

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which has been rescheduled and will now be taking place at the OBA, 20 Toronto Street, Toronto, on Thursday, May 9, 2019. It is a three hour dinner program beginning at 5 PM, which will also be available by live webcast for those who cannot attend in person.

Our first set of panelists, David Thompson and Katherine Di Tomaso, will discuss Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v BentPointes Protection Association and the “Anti-SLAPP Sextet”.

Last, but certainly not least, a panel led by Glenn Chu of the City of Toronto will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Wishing everyone a pleasant weekend and March break.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Lascaris v B’nai Brith Canada, 2019 ONCA 163

Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Justification, Qualified Privilege, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.43, ss. 137.1(4), Libel and Slander Act, RSO 1990, c L.12, s. 5(1), WIC Radio Ltd v Simpson, 2008 SCC 40, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130

Bondfield Construction Company Limited v The Globe and Mail, 2019 ONCA 166

Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.4, s. 137.1, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Grant v Torstar Corp, 2009 SCC 61

Brown v Laurie, 2019 ONCA 175

Keywords: Contracts, Life Insurance, Beneficiaries, Debtor-Creditor, Unjust Enrichment, Civil Procedure, Partial Summary Judgment, Butera v Chown, Cairns LLP, 2017 ONCA 783

Cline v Drummond, 2019 ONCA 188

Keywords: Torts, Nuisance, Intrusion Upon Seclusion, Reasonable Apprehension of Bias, Jones v Tsige, 2012 ONCA 32

Endean v St Joseph’s General Hospital, 2019 ONCA 181

Keywords: Torts, Negligence, MedMal, Product Liability, Duty to Recall, Civil Procedure, Damages, Concurrent Liability, Joint and Several Liability, Contribution and Indemnity, Apportionment of Fault, Pierringer Orders, Limitation Periods, Fraudulent Concealment, Contribution and Indemnity, Public Hospitals Act, RSO 1980 c 410, s. 28 and RSO 1990, c P.40, s. 31, Negligence Act, RSO 1990, c N.1, s. 1, Limitations Act, RSO 1990, c L.15, Peixeiro v Haberman, [1997] 3 SCR 549, Guerin v The Queen, [1984] 2 SCR 335, Athey v Leonati, [1996] 3 SCR 458, Sable Offshore Energy Inc v Ameron International Corp, 2013 SCC 37, M(J) v Bradley (2004), 71 OR (3d) 171, Von Cramm Estate v Riverside Hospital of Ottawa (1986), 32 DLR (4th) 314, Taylor v Canada (Health), 2009 ONCA 487

Short Civil Decisions

Chisholm v Bell Canada, 2019 ONCA 176

Keywords: Civil Procedure, Dismissal for Delay

AVIS Industrial Corporation v Gravelle, 2019 ONCA 172

Keywords: Civil Procedure, Vexatious Litigants

Singh v Braithwaite, 2019 ONCA 174

Keywords: Civil Procedure, Dismissal for Delay

Kakoutis v TD Insurance, Meloche Monnex, 2019 ONCA 171

Keywords: Torts, MVA, Insurance, Accident Benefits, Limitation Periods, Reasonable Apprehension of Bias

Hopley v Health One Physio Inc, 2019 ONCA 183

Keywords: Torts, MVA, Civil Procedure, Limitations Period, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, s 5(2)

Sadat v Pica, 2019 ONCA 186

Keywords: Torts, MVA, Insurance, Coverage, Unidentified Motorists, Insurance Act, RSO 1990, c I.8, s 265, Ontario Automobile Policy, s 5

Lam v University of Western Ontario, 2019 ONCA 185

Keywords: Costs

Criminal Decisions

R v Boghossian, 2019 ONCA 169

Keywords: Criminal Law, Fraud, Delay, Sentencing, Canadian Charter of Rights and Freedoms, s 11(b), R v McIver, [1965] 1 OR 306 (Ont HC), aff’d [1965] 2 OR 475 (Ont CA), aff’d [1966] SCR 254, R v Villaroman, 2016 SCC 33, R v Jordan, 2016 SCC 27, R v Morin, [1992] 1 SCR 771

R v Kazi, 2019 ONCA 167

Keywords: Criminal Law, Child Luring, Delay, Sufficiency of Reasons, Sentencing, Canadian Charter of Rights and Freedoms, s 11(b), R v Jordan, 2016 SCC 27, R v Morrison, 2017 ONCA 582

R v Reis, 2019 ONCA 168

Keywords: Criminal Law, Aggravated Assault, Firearm Offences, Self-Defence, Evidence, KGB Statements, R v Edgar, 2010 ONCA 529

R v Hong, 2019 ONCA 170

Keywords: Criminal Law, Murder, Attempted Murder, Robbery, Assault, Jury Instructions, Criminal Code, RSC, 1985, c C-46, s 21, R v Biniaris, 2000 SCC 15, R v Ferguson, 2008 SCC 6, R v Tillekaratna (1998), 124 CCC (3d) 549 (Ont CA), R v Talbot, 2007 ONCA 81, R v Smithers, [1978] 1 SCR 506, R v AG, 2000 SCC 17, R v Pocock, 2015 ONCA 212, R v R(AJ) (1994), 20 OR (3d) 405 (CA), R v Figueroa, 2016 ONCA 645, leave to appeal dismissed, [2017] SCCA No 1, R v Munroe (1995), 96 CCC (3d) 431 (Ont CA), aff’d [1995] 4 SCR 53

R v JY, 2019 ONCA 173

Keywords: Criminal Law, Appeal Dismissed

R v Nguyen, 2019 ONCA 180

Keywords: Criminal Law, Drug Trafficking, Drug Possession, Sufficiency of Reasons

R v Nguyen, 2019 ONCA 178

Keywords: Criminal Law, Unreasonable Search and Seizure, Canadian Charter of Rights and Freedoms, s 10(b), 24(2), R v Grant, 2009 SCC 32

R v Katerberg, 2019 ONCA 177

Keywords: Criminal Law, Marijuana Trafficking, Possession, , Right to be Informed of Reasons for Arrest, Right to Counsel, Canadian Charter of Rights and Freedoms, s 10, 24(2), Controlled Drugs and Substances Act, SC 1996, c 19, s 5(2), 7(1), R v Suberu, 2009 SCC 33, R v Roberts, 2018 ONCA 41, R v Evans, [1991] 1 SCR 869, R v Sebben, 2015 ONCA 270, leave to appeal dismissed, [2015] SCCA No 191

R v Deu, 2019 ONCA 182

Keywords: Criminal Law, Robbery, Break and Enter, Evidence, Identification, Criminal Code, RSC 1985, c C-46, s 21, 334, 343, Canada Evidence Act, RSC 1985, c C-5, s 9(2)

R v Couture, 2019 ONCA 187

Keywords: Criminal Law, Theft, Jury Instructions, Sentencing

R v Higgins, 2019 ONCA 191

Keywords: Criminal Law, Robbery, Sentencing

Ontario Review Board

Murray (Re), 2019 ONCA 179

Keywords: Ontario Review Board


CIVIL DECISIONS

Lascaris v B’nai Brith Canada, 2019 ONCA 163

[Doherty, Pardu and Nordheimer JJ.A.]

Counsel:

M. Henein, A. Smith and M. Strycmar-Bodnar for the appellant

D. Elmaleh and G. Caracas, for the respondent

Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Justification, Qualified Privilege, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.43, ss. 137.1(4), Libel and Slander Act, RSO 1990, c L.12, s. 5(1), WIC Radio Ltd v Simpson, 2008 SCC 40, Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130

Facts:

The appellant appealed from the order of the motion judge that dismissed his action pursuant to s. 137.1 of the Courts of Justice Act, RSO 1990, c C.43 on the basis that it was a Strategic Litigation against Public Participation (“SLAPP”) action.

The appellant was the Justice Critic in the Green Party of Canada’s shadow cabinet who advanced a resolution calling on the Green Party to support the use of peaceful boycott, divestment and sanctions (“BDS”) to bring an end to Israel’s occupation of Palestinian territories. The respondent, an independent, charitable organization involved in human rights and advocacy initiatives for the Canadian Jewish community then began a campaign against the appellant, the Green Party, and others related to the resolution, stating that the resolution was anti-Semitic. The respondent published an article entitled “Green Party Justice Critic Advocates on Behalf of Terrorists”. The appellant later discovered another publication on the respondent’s Twitter account, stating: “[the appellant] resorts to supporting #terrorists in his desperation to delegitimize the State of #Israel”.  The tweet contained a link to the respondent’s article.

After the tweet, the appellant served notice upon the respondent regarding the defamatory publications under s. 5(1) of the Libel and Slander Act, RSO 1990, c L.12 and commenced a libel action. The respondent defended the claim, and brought a motion to dismiss the action under the Anti-SLAPP provisions of the Courts of Justice Act in s. 137.1. The motion judge granted the motion and dismissed the action. The motion judge first found that there was no doubt that the respondent’s expressions related to matters of public interest, and that she was prepared to assume that the appellant’s claim had substantial merit. With respect to the requirement that the appellant prove that the respondent had no valid defence in the pleading under s. 137.1(4)(a)(ii), the motion judge stated that this required the appellant to demonstrate that none of the defences raised by the respondent “could possibly succeed”. The motion judge found that the appellant faced an “insurmountable hurdle” on this test with respect to the defence of fair comment in applying the test articulated by the Supreme Court of Canada in WIC Radio Ltd v Simpson, 2008 SCC 40.  Consequently, she did not deal with the respondent’s justification, qualified privilege or notice defences. The motion judge also did not consider the “balancing” part of the test set out in s. 137.1(4)(b).

Issue:

(1) Did the motion judge err in granting the motion and dismissing the appellant’s action?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The motion judge erred in finding that the appellant could not satisfy s. 137.1(4)(a)(ii). The Court stated that the burden under this provision is not, as applied by the motion judge, to show that a defence has no hope of success, but rather it is to show that it is a possible that a defence would not succeed. A reasonable trier of fact could conclude that the defence of fair comment would not succeed in this case because it would be open to a trier to conclude that the statements that the appellant supported terrorists were uttered as statements of fact, or that a person could not honestly express that opinion based on the proved facts.

The motion judge did not deal with the other defences raised because of her conclusion on the defence of fair comment, so the Court of Appeal did so. The Court first found that, for the reasons considered with respect to the defence of fair comment, it would be open to a trier to find it was possible that the defence of justification would not succeed. The Court then considered the defence of qualified privilege, stating that in order for this to apply, the respondent must have “an interest or a duty, legal, social, or moral, to make [the impugned statements] to the person to whom [those statements are] made”: Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 (“Hill”), at para. 143. The Court found that it was unclear what duty the respondent could point to in order to qualify its statements. Based on this analysis, the court found that the appellant had met his burden under s. 137.1(4)(a)(ii) that a reasonable trier might conclude that none of the defences advanced would succeed.

The Court then applied the balancing requirement under s. 137.1(4)(b) because the motion judge did not do so. The Court stated that this balancing looks at whether the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression was sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. The Court found that the balance clearly favoured the appellant because if the appellant’s action proceeded and was ultimately successful, the damages to which the appellant would be entitled could be significant. The Court stated this was the case because accusing any person of supporting terrorists is about as serious and damaging an allegation as can be made in these times. This reality was sufficient to establish the seriousness of the harm to the appellant, and to rebut the respondent’s submission that the appellant failed to lead any evidence to show damage to his reputation arising from the impugned statements.  Furthermore, the appellant was a lawyer and his reputation was central to his ability to carry out his profession, as per Hill.

Bondfield Construction Company Limited v The Globe and Mail Inc, 2019 ONCA 166

[Doherty, Pardu and Nordheimer JJ.A.]

Counsel:

K. O’Brien and K. Sachar, for the appellant

C. Martins and A. MacDonald, for the respondents

Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Civil Procedure, Anti-SLAPP, Courts of Justice Act, RSO 1990, c C.4, s. 137.1, 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685, Grant v Torstar Corp, 2009 SCC 61

Facts:

The respondents published a series of articles between September 2015 and February 2016 about the appellant’s successful bid on a $300 million contract to build a new critical care facility at St. Michael’s Hospital in Toronto (“SMH”). The articles addressed the connection between the appellant and its president, John Aquino, with Vas Georgiou, a senior executive at SMH who was on the committee that awarded the construction contract to the appellant. The appellant sued the respondent for $125 million, asserting that the respondent’s articles falsely alleged a corrupt connection between Mr. Aquino and Mr. Georgiou that had played a role in the appellant obtaining the contract.

The respondent defended on the basis that the articles were not defamatory, but rather focused on Mr. Georgiou’s checkered past, and the undisclosed conflict of interest in the bidding process flowing from Mr. Georgiou and Mr. Aquino’s common business interests. The respondent brought a motion under the Anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act, RSO 1990, c C.43, to dismiss the appellant’s action, claiming that the lawsuit was brought to silence the respondent on matters of significant public importance. The motion judge allowed the respondent’s motion, dismissed the action, and awarded the respondent costs on a substantial indemnity basis fixed at $500,000.

The appellant appealed the decision on the basis that the motion judge misinterpreted the provisions in s. 137.1, and in particular, s. 137.1(4)(a)(ii). The appellant submitted that the Court of Appeal, in a series of decisions released after the motion judge released his reasons, has interpreted s. 137.1 in a fundamentally different way than did the motion judge. The appellant argued that on a correct interpretation of s. 137.1, the respondent’s motion to dismiss the appellant’s action should have failed.

Issues:

(1) Did the motion judge err in his interpretation of the “no valid defence” provision in s. 137.1(4)(a)(ii)?

(2) Should the claim have been dismissed on the “public interest” balancing provided for in s. 137.1(4)(b)?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The motion judge did not have the benefit of the reasons in the sextet of decisions headlined by 1704604 Ontario Ltd v Pointes Protection Association, 2018 ONCA 685.  As described in Pointes, the onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed.

The motion judge placed the onus on the appellant to show that the respondent did not have a valid defence. However, as explained in Pointes, s. 137.1(4)(a)(ii) imposes a significantly less onerous burden on the appellant. The appellant was required to show that a reasonable trier could conclude that the respondent did not have a valid defence. The appellant would meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the respondent.

If the motion judge had the benefit of the analysis in Pointes, he would have found that the appellant had met its onus to show grounds to believe that the respondent had no valid defence. The Court found that the appellant met its onus under s. 137.1(4)(a)(ii) to show grounds to believe that a reasonable trier could conclude that the respondent did not have a valid defence.

(2) No. There was no history of the appellant using litigation or the threat of litigation to silence critics. There was also no financial or other power imbalance that favoured the appellant over the respondent, nor any suggestion of any punitive or retributory purpose motivating the appellant’s lawsuit. To that end, there was also nothing on the record that suggested that the respondent was motivated by anything other than a desire to inform the public about the facts that their investigation revealed. The articles did not contain any deliberate falsehoods, hyperbole, personal attack, or other characteristics that would diminish public interest in protecting their expression.

Brown v Laurie, 2019 ONCA 175

[Simmons, Tulloch and Brown JJ.A.]

Counsel:

D.B. Williams and Rob Danter, for the appellants

J.A. Nicholson, for the respondent

Keywords:

Contracts, Life Insurance, Beneficiaries, Debtor-Creditor, Unjust Enrichment, Civil Procedure, Partial Summary Judgment, Butera v Chown, Cairns LLP, 2017 ONCA 783

Facts:

The respondent operated a jewellery store with one business partner through a corporation.  As part of their business arrangement, they each took out life insurance on the other’s life, with the corporation paying the premium.  One policy named the respondent as the sole beneficiary.  The respondent’s business partner became ill less than a year after the business venture started, and passed away shortly thereafter.  Disputes then arose between the respondent and his business partner’s estate.  The business partner’s widow acted as estate trustee (and was therefore the appellant in this appeal both in her personal capacity and in her capacity as trustee).  The parties agreed to place the proceeds from the policy in an escrow account (the “Proceeds”).

The respondent commenced an action against the appellants seeking two forms of relief.  First, he sought a declaration that he was entitled to the Proceeds.  Second, he sought judgment on a promissory note that he alleged his business partner had executed in respect of the balance of the subscription price owed for his shares in the company.  The respondent alleged that a share purchase agreement (the “Share Purchase Agreement”)  he, his partner, and the corporation had entered into had misstated the purchase price for his partner’s share and that his partner gave him the promissory on account of the balance owing for his shares.

The appellants denied any liability on the promissory note and maintained that the respondent would be unjustly enriched if he were to receive the Proceeds.  The appellants also counterclaimed seeking: (i) an order that they were entitled to the Proceeds (a) by virtue of an agreement made by the respondent and his partner that the proceeds of the insurance policies were to go to the estate of the deceased shareholder, or (b) by virtue of a constructive trust; and (ii) a mandatory order requiring the respondent to purchase the Estate’s shares in the company.

The respondent moved for summary judgment on his claims, and for summary judgment dismissing the counterclaims. The motion judge granted summary judgment declaring the respondent entitled to the escrowed Proceeds and he dismissed the appellants’ counterclaim that they were entitled to the Proceeds.  However, the motion judge did not grant the respondent summary judgment on the promissory note.  Instead, he directed a trial of that claim.

Issues:

(1) Did the motion judge err in granting judgment in respect of the Proceeds based solely on documentary evidence?

(2) Did the motion judge err in granting judgment on the Proceeds claim while directing a trial on the promissory note claim, insofar as the two issues were interconnected and inseparable?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  The Court rejected the appellants’ contention that the respondent and his partner had entered into a buy-sell agreement under which the proceeds from the insurance policy on one partner’s life would be used to purchase his shares in the company from his estate.  Notwithstanding certain pieces of evidence that the appellants submitted in support of the appellants’ argument that there was a genuine issue requiring trial, the Court confirmed that the motion judge carefully considered the entirety of the evidence before granting partial summary judgment.

The Court further rejected the appellants’ argument that the motion judge required oral evidence, as the appellants’ affidavit disclosed that the appellants’ only evidence on the issue was the hearsay statement from her husband.  As to the evidence of the insurance broker for the policies, the onus lay on the appellants to demonstrate the existence of some circumstance that justified departing from the clear beneficiary designation in the policy.  The appellants were required to put their best foot forward on that issue, yet the appellants did not file an affidavit from the insurance broker or examine him. The motion judge did not err by granting summary judgment in this respect.

The Court also rejected the appellants’ argument that there was a genuine issue requiring a trial in relation to the appellants’ claim that the respondent’s failure to keep the company’s minute book up-to-date meant that he never had a legal interest in the shares of the company, with the result that the parties’ Share Purchase Agreement was void.  The Court agreed with the motion judge’s conclusion that even if the Share Purchase Agreement was void, the appellants and his partner would still have had a pecuniary and insurable interest in one another.

Lastly, the Court rejected the appellants’ submission that a genuine issue requiring a trial existed as to whether the Proceeds were impressed with a constructive trust in the appellants’ favour.  Agreeing with the motion judge, the Court found that the respondent’s business partner suffered no deprivation, nor did the respondent possess trust monies due to unjust enrichment, interference or breach of fiduciary duty.  Rather, the respondent received insurance funds precisely as the parties jointly anticipated from the outset.

(2) No.  The motion judge was alive to the risks of granting summary judgment on only part of the claim, having canvassed all of the relevant factors.  He concluded that the dangers of duplicative or inconsistent findings did not arise in the circumstances.

The Court also rejected the appellants’ two defences to resist payment of the promissory note: (first that the partner never signed a promissory note; and alternatively, if he did, the note was discharged through a payment under the Share Purchase Agreement).  Those defences were unconnected to the grounds the appellants advanced for the appellants’ claim to the Proceeds.  In the circumstances, it was open to the motion judge to grant summary judgment only on the claim regarding the Proceeds.

Cline v Drummond, 2019 ONCA 188

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

The appellant, acting in person

L. Protopapas, for the respondents

Keywords: Torts, Nuisance, Intrusion Upon Seclusion, Reasonable Apprehension of Bias, Jones v Tsige, 2012 ONCA 32

Facts:

This case arose out of a protracted dispute between neighbours.  The main action related to a property boundary dispute that was settled before trial.  Accordingly, the trial judge only dealt with the respondents’ counterclaim against the appellant, and the appellant’s counterclaim against the respondents, both of which included allegations related to nuisance and invasion of privacy (intrusion upon seclusion).  In dismissing the action, the trial judge made findings on two fundamental points: (a) that the respondents’ actions did not constitute nuisance or an invasion of privacy; and (b) that the appellant’s actions amounted to nuisance.

Issues:

(1) Did the trial judge err by concluding that the appellant was not entitled to damages for nuisance or invasion of privacy?

(2) Did the trial judge err by failing to make an adverse inference against the respondents on the basis that they should have produced more video surveillance than they did?

(3) Did the trial judge err in awarding injunctive relief?

(4) Did the trial judge err in finding police officers credible when they were clearly not?

(5) Was the trial judge biased and prejudiced?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  The trial judge made findings of fact to which the Court of Appeal deferred.  He applied the correct legal test for the tort of nuisance and addressed the substance of the correct legal test for the tort of invasion of privacy (also referred to as intrusion upon seclusion) and applied it to those facts.  The Court saw no reason to interfere with the trial judge’s conclusion on this issue.

(2) No.  It was open to the trial judge to reject the appellant’s suggestion that the respondents had destroyed evidence.  It was also open to the trial judge to conclude that the missing video would not have substantiated the appellant’s position in any event.  As the trial judge found, it was more reasonable to infer that the videos had not been watched, except in relation to those incidents that directly involved the appellant.

(3) No.  Given the trial judge’s conclusions about the appellant’s malice and threatening behaviour towards the respondents, the Court of Appeal saw no error in his decision to grant an injunction restraining the appellant from all forms of communication with the respondents, except by their written invitation or agreement.

(4) No.  Although the trial judge made multiple credibility findings, he was duty bound to do so.  The fact that those findings did not accord with the appellant’s view of the witness’ veracity did not constitute a reason to set aside those findings.

(5) No.  The trial judge carefully, patiently, and methodically considered all evidence in this case, identified the live issues before the court, came to findings of fact and correctly applied the law.

Endean v St Joseph’s General Hospital, 2019 ONCA 181

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

Counsel:

B. Moher and M. Zamfir, for the appellants/respondents by way of cross-appeal

S. Wojciechowski and D. Latta, for the respondent/appellant by way of cross-appeal

Keywords: Torts, Negligence, MedMal, Product Liability, Duty to Recall, Civil Procedure, Damages, Concurrent Liability, Joint and Several Liability, Contribution and Indemnity, Apportionment of Fault, Pierringer Orders, Limitation Periods, Fraudulent Concealment, Contribution and Indemnity, Public Hospitals Act, RSO 1980 c 410, s. 28 and RSO 1990, c P.40, s. 31, Negligence Act, RSO 1990, c N.1, s. 1, Limitations Act, RSO 1990, c L.15, Peixeiro v Haberman, [1997] 3 SCR 549, Guerin v The Queen, [1984] 2 SCR 335, Athey v Leonati, [1996] 3 SCR 458, Sable Offshore Energy Inc v Ameron International Corp, 2013 SCC 37,  M(J) v Bradley (2004), 71 OR (3d) 171, Von Cramm Estate v Riverside Hospital of Ottawa (1986), 32 DLR (4th) 314, Taylor v Canada (Health), 2009 ONCA 487

Facts:

The appellants each had surgery at the respondent-St. Joseph’s General Hospital (the “hospital”) where they each received an implant which later caused injury to them.  The appellants commenced actions against the hospital and the oral surgeons that performed the surgery.  The hospital and oral surgeons cross-claimed against each other in these actions.  The appellants reached settlements with the oral surgeons and a Pierringer Order was made in each action.  These Pierringer Orders dismissed the actions against the oral surgeons and the cross-claims between the hospital and the oral surgeons.  They provided that each of the appellants’ claims “are restricted such that [the appellants] will only claim those damages, if any, arising from the actions or omissions of the Defendant Hospital”.  The Pierringer Orders required the statement of claim in each action to be amended to limit the claim against the hospital to its several liability or proportionate share of joint liability to the appellant.  The appellants’ recovery would be limited to the damages, costs and interest attributable to the hospital’s several liability.  The actions then came to trial, which was bifurcated to deal first with the issue of liability.

The trial judge dismissed three of the four actions (the “Other Actions”) for being commenced beyond the two-year limitation period in the Public Hospitals Act, RSO 1980 c 410, s. 28 and RSO 1990, c P.40, s. 31 (the “PHA”).  One of the actions (the “Hearsey Action”) was allowed to go forward because that appellant had received follow up treatment at the hospital within two years of the commencement of her action.  The trial judge found that the hospital was negligent in acquiring the implants and the oral surgeons were negligent in failing to take due care when assessing the viability of the implants.  Fault was apportioned as follows: 5% to the hospital, 20% to the oral surgeons, 50% to the manufacturer, and 25% to the distributor.  Both the manufacturer and the distributor were bankrupt and not parties to the actions.  The trial judge granted judgment against the hospital for 5% of the damages that were to be assessed in the second phase of the trial and granted costs in favour of the hospital in each of the Other Actions.

Issues:

(1) Did the trial judge err in finding that the Other Actions were barred by the PHA limitation period?

(2) Did the trial judge err in rejecting the appellants’ fraudulent concealment argument?

(3) Did the trial judge err in finding that the Hearsey Action was within the limitation period?

(4) Did the trial judge err in rejecting the argument that the hospital had breached a duty to recall the implants?

(5) Did the trial judge err in apportioning fault and reducing the recovery of the appellants in the Hearsey Action as a result of that apportionment?

(6) Did the trial judge err in awarding costs?

Holding:

Appeal allowed in part.

Reasoning:

(1) No.  First, the Court of Appeal approved the trial judge’s rejection of the appellants’ argument that the PHA limitation period is subject to a discoverability principle.  It was therefore irrelevant that the appellants had no idea anything was wrong with them until 1994 at the earliest and commenced their actions within two years of knowing the implant had failed and caused them damage.  The basis for this finding was the Ontario Court of Appeal’s decision in Von Cramm Estate v Riverside Hospital of Ottawa (1986), 32 DLR (4th) 314, which made it clear that the discoverability principle did not apply to the PHA.  Although Von Cramm was decided before the Supreme Court of Canada’s decision in Peixeiro v Haberman, [1997] 3 SCR 549, the trial judge was correct to find that the discoverability principle did not apply to the PHA.

On appeal, the appellants argued that the PHA limitation period did not apply to the wrong found to have been committed by the hospital.  They contended that it was not negligence in care, treatment, or discharge of the appellants within the meaning of the PHA and was properly subject to the former Limitations Act, RSO 1990, c L.15 and its overlay of discoverability.  The trial judge found that the only negligence of the hospital was its decision to purchase the implants.

The Court agreed with the trial judge, finding that the negligence of the hospital in purchasing the implants was not actionable by any of the appellants on their own and was only actionable because the implants were made available for use in the surgeries performed on the appellants.  The trial judge’s findings were illustrative of the integral connection between the purchase of the implants, the appellants’ care and treatment, the appellants’ injuries and the negligence of the hospital.  The Court stated that giving the PHA the strict reading contemplated by prior decisions did not alter the conclusion that the PHA limitation provision applied.  This was because a negligent act by a hospital before a patient receives care or treatment, which becomes actionable only because it enables a treatment at the hospital that causes injury, is negligence in the care or treatment of the patient within the meaning of the PHA limitation provision.

(2) No.  The Court agreed with the trial judge’s rejection of the appellants’ fraudulent concealment argument.  The doctrine of fraudulent concealment does not require common law fraud per the Supreme Court of Canada’s decision in Guerin v The Queen, [1984] 2 SCR 335, and the doctrine of fraudulent concealment could apply to the PHA limitation period.

However, the doctrine did not apply in the circumstances of this case.  The trial judge’s findings of fact preclude any conclusion that the hospital was hiding, secreting, cloaking, camouflaging, disguising or covering up anything.  The facts found by the trial judge, which are referred to in the section below on the duty to recall, show that the hospital contacted the oral surgeons to ensure that they knew about the issue with the implants, advised the oral surgeons of the issue, and contacted the distributor.  Those facts were not consistent with concealment in the sense required by the doctrine.

(3) No.  The trial judge did not err in finding that the Hearsey Action was not barred by the PHA limitation period.  The Court rejected the appellant’s argument that a diagnostic procedure that the appellant had was not “treatment”.  This procedure was connected to the implant surgery.  Furthermore, nothing in the PHA limitation provision supported a distinction between a diagnostic procedure and the treatment.  Treatment is a term that encompasses investigations which are necessary to determine a future course of care and treatment, as well as investigations to monitor the effect of previous care and treatment.  Accordingly, the procedure was a treatment.

(4) No.  The trial judge did not err in rejecting the argument that the hospital had a duty to recall the implants.  The appellants argued that the trial judge failed to give effect to the correct duty of care and that the trial judge should have recognized that when the hospital received warnings and a letter from the distributor of the implant, it owed a duty to recall.  The Court found that the trial judge accepted evidence of the CEO of the hospital that a recall was something only to be initiated by the oral surgeons given their medical training, ability to order tests, and ability to treat patients and accepted other evidence going to the hospital’s ability to oversee the oral surgeons.  He also held that it was reasonable for the hospital to assume that the distributor and the oral surgeons, who had knowledge superior to that of the hospital about the implant and about what to do for patients if the implant failed, would deal appropriately with the issue.  Based on this, he concluded that there was no basis to elevate the hospital to an oversight role over the oral surgeons.  The Court found that these findings were entitled to deference and that the appellants’ proposition that a duty to recall existed and was breached by the hospital must be rejected.

(5) Yes.  The trial judge erred by apportioning 75% of the liability to the two non-parties, limiting the recovery of the Hearsey Action appellants.  The Court first reviewed the basic principles of concurrent liability, recapping that at law, where more than one wrongdoer has caused or contributed to the plaintiff’s injury, they are each liable to compensate the plaintiff in full, subject only to the rule that the plaintiff cannot recover more than 100% of their damages: see Athey v Leonati, [1996] 3 SCR 458, at para. 25 (“Athey”).  This means that the plaintiff can recover 100% of their losses from any defendant who caused or contributed to the particular injury regardless of the degree of fault of that defendant, and regardless of whether others, parties or non-parties, were also at fault.  Furthermore, pursuant to s. 1 of the Negligence Act, RSO 1990, c N.1, wrongdoers have a right of contribution from each other.

The purpose of a Pierringer Order is to facilitate a settlement between a plaintiff and a defendant who wishes to settle (a settling defendant), while maintaining a level playing field for the remaining (non-settling) defendants against whom the plaintiff wishes to proceed to trial: see Sable Offshore Energy Inc v Ameron International Corp, 2013 SCC 37, at paras. 6, 23–26.  A Pierringer Order requires the plaintiff to effectively put a non-settling defendant in the same economic position as if it paid the plaintiff in full and recovered any indemnity from the settling defendant.  It does this by requiring the plaintiff to reduce its recovery from the non-settling defendant by the percentage of fault to be attributed to the settling defendant, and thus, by the amount the non-settling defendant would have been able to recover from the settling defendant as indemnity: see M(J) v Bradley (2004), 71 OR (3d) 171, at paras. 30–31.

The Court rejected the hospital’s argument on appeal that the effect of the Pierringer Order was to reduce the Hearsey Action appellants’ recovery from the hospital by the amount of fault the trial judge might attribute to the manufacturer and the distributor.  These were entities against whom the hospital had not claimed indemnity under the Negligence Act, and from whom the hospital had no practical ability to recover indemnity from, even if claimed.  The wording of the Pierringer Order was not so broad and was only intended to ensure that the potential claim and recovery from the hospital did not include anything for the fault that was attributed to the oral surgeons.  The whole of the evidentiary background, the Pierringer Order, and the amended statement of claim in the Hearsey Action did not require the appellants to reduce their claims against the hospital by the percentage fault of the manufacturer and the distributor, which would improve the position of the hospital had the Pierringer Order not been entered into.

The Court found that the trial judge erred in relying on the Court of Appeal decision in Taylor v Canada (Health), 2009 ONCA 487 (“Taylor”) as authority to apportion fault to non-parties.  Taylor does not stand for a proposition that is so broad that it would entitle the court in any case to apportion fault to non-parties, and reduce the plaintiff’s recovery by that apportioned share of fault.  That would be inconsistent with what the Supreme Court of Canada said in Athey and with s. 1 of the Negligence Act: namely, the general rule is that a wrongdoer is liable for 100 percent of a plaintiff’s injuries and wrongdoers are liable to contribute between themselves in accordance with their relative shares of fault.  The circumstances in Taylor were substantially different than the facts at bar in concerning a class action where the plaintiff agreed to amend her statement of claim to specifically state that she was prepared to reduce the claim by the proportion of fault that would be attributed to the proposed third parties.  It was in this context that the court in Taylor held that fault could be apportioned at trial to non-parties.  These circumstances were not present in this case at bar.

The Court concluded that fault should be reapportioned 20% to the hospital and 80% to the oral surgeons because the trial judge found the oral surgeons four times more at fault than the hospital.  The Pierringer Order was designed to protect the hospital from paying more than its proportionate share to the same degree as its prior cross-claim for indemnity against the oral surgeons.

(6) No.  There was no error in principle justifying appellate intervention.  The hospital argued that an amount for HST is not included in the costs awards which the trial judge made after dismissing the Other Actions.  The Court rejected this, finding that the trial judge did not limit himself to a mechanical calculation of costs dependent on the inclusion or lack of inclusion of any specific item, and was satisfied that the amounts he awarded were reasonable.


SHORT CIVIL DECISIONS

Chisholm v Bell Canada, 2019 ONCA 176

[Simmons, Tulloch and Brown JJ.A.]

Counsel:

S.C., in person

L. Alleyne, for the respondent

Keywords: Civil Procedure, Dismissal for Delay

AVIS Industrial Corporation v Gravelle, 2019 ONCA 172

[Tulloch, Brown and Miller JJ.A.]

Counsel:

G.G., in person

D. Zulianello, for the respondent

Keywords: Civil Procedure, Vexatious Litigants

Singh v Braithwaite, 2019 ONCA 174

[Simmons, Tulloch and Brown JJ.A.]

Counsel:

P. Di Monte, for the appellant

B. Pickard, for the respondent

Keywords: Civil Procedure, Dismissal for Delay

Kakoutis v TD Insurance, Meloche Monnex, 2019 ONCA 171

[Simmons, Tulloch and Brown JJ.A.]

Counsel:

L.K., in person

E.K., in person

M. Dugas, for the respondent

K. Bernofsky, for the respondent

Keywords: Torts, MVA, Insurance, Accident Benefits, Limitation Periods, Reasonable Apprehension of Bias

Hopley v Health One Physio Inc, 2019 ONCA 183

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

J.V. Allen, for the appellant

J. DiFederico, for the respondent

Keywords: Torts, MVA, Civil Procedure, Limitations Period, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, s 5(2)

Sacat v Pica, 2019 ONCA 186

[Feldman, Roberts and Fairburn JJ.A.]

Counsel:

I. Little, for the appellant

J.-C Rioux and C. Mak, for the respondent Certas Direct Insurance Company

M. Fonseca, for the respondents J.L. and Jian Hing Supermarket Inc.

Keywords: Torts, MVA, Insurance, Coverage, Unidentified Motorists, Insurance Act, RSO 1990, c I.8, s 265, Ontario Automobile Policy, s 5

Lam v University of Western Ontario, 2019 ONCA 185

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

Counsel:

S.A. Pieters and C. Stienburg, for the appellant

S. Jones, for the respondent

Keywords: Costs


CRIMINAL DECISIONS

R v Boghossian, 2019 ONCA 169

[Rouleau, Trotter and Zarnett JJ.A.]

Counsel:

R. Pillay and D. Basile, for the appellant

D. Friesen, for the respondent

Keywords: Criminal Law, Fraud, Delay, Sentencing, Canadian Charter of Rights and Freedoms, s 11(b), R v McIver, [1965] 1 OR 306 (Ont HC), aff’d [1965] 2 OR 475 (Ont CA), aff’d [1966] SCR 254, R v Villaroman, 2016 SCC 33, R v Jordan, 2016 SCC 27, R v Morin, [1992] 1 SCR 771

R v Kazi, 2019 ONCA 167

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

M. Bryant, for the appellant

A. Hotke, for the respondent

Keywords: Criminal Law, Child Luring, Delay, Sufficiency of Reasons, Sentencing, Canadian Charter of Rights and Freedoms, s 11(b), R v Jordan, 2016 SCC 27, R v Morrison, 2017 ONCA 582

R v Reis, 2019 ONCA 168

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

F. Mirza and K. Gates, for the appellant

A. Alyea, for the respondent

Keywords: Criminal Law, Aggravated Assault, Firearm Offences, Self-Defence, Evidence, KGB Statements, R v Edgar, 2010 ONCA 529

R v Hong, 2019 ONCA 170

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

D. Doucette and A. Ruffo, for the appellant

E. Nakelsky, for the respondent

Keywords: Criminal Law, Murder, Attempted Murder, Robbery, Assault, Jury Instructions, Criminal Code, RSC, 1985, c C-46, s 21, R v Biniaris, 2000 SCC 15, R v Ferguson, 2008 SCC 6, R v Tillekaratna (1998), 124 CCC (3d) 549 (Ont CA), R v Talbot, 2007 ONCA 81, R v Smithers, [1978] 1 SCR 506, R v AG, 2000 SCC 17, R v Pocock, 2015 ONCA 212, R v R(AJ) (1994), 20 OR (3d) 405 (CA), R v Figueroa, 2016 ONCA 645, leave to appeal dismissed, [2017] SCCA No 1, R v Munroe (1995), 96 CCC (3d) 431 (Ont CA), aff’g [1995] 4 SCR 53

R v JY, 2019 ONCA 173

[MacPherson, Sharpe and Tulloch JJ.A.]

Counsel:

I. Smith, as duty counsel

A. Baiasu, for the respondent

Keywords: Criminal Law, Appeal Dismissed

R v Nguyen, 2019 ONCA 180

[Juriansz, Lauwers and Trotter JJ.A.]

Counsel:

M. Halfyard, for the appellant

X. Proestos, for the respondent

Keywords: Criminal Law, Drug Trafficking, Drug Possession, Sufficiency of Reasons

R v Nguyen, 2019 ONCA 178

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

J. Marshman, for the appellant

K. Healey, for the respondent

Keywords: Criminal Law, Unreasonable Search and Seizure, Canadian Charter of Rights and Freedoms, s 10(b), 24(2), R v Grant, 2009 SCC 32

R v Katerberg, 2019 ONCA 177

[Pardu, Nordheimer and Harvison Young JJ.A.]

Counsel:

M. Halfyard and C. Rudnicki, for the appellant

V. Rivers, for the respondent

Keywords: Criminal Law, Marijuana Trafficking, Possession, , Right to be Informed of Reasons for Arrest, Right to Counsel, Canadian Charter of Rights and Freedoms, s 10, 24(2), Controlled Drugs and Substances Act, SC 1996, c 19, s 5(2), 7(1), R v Suberu, 2009 SCC 33, R v Roberts, 2018 ONCA 41, R v Evans, [1991] 1 SCR 869, R v Sebben, 2015 ONCA 270, leave to appeal dismissed, [2015] SCCA No 191

R v Deu, 2019 ONCA 182

[Pardu, Nordheimer and Harvison Young JJ.A.]

Counsel:

M. Halfyard, for the appellant

A. Cappell, for the respondent

Keywords: Criminal Law, Robbery, Break and Enter, Evidence, Identification, Criminal Code, RSC 1985, c C-46, s 21, 334, 343, Canada Evidence Act, RSC 1985, c C-5, s 9(2)

R v Couture, 2019 ONCA 187

[Juriansz, Pepall and Trotter JJ.A.]

Counsel:

R. Sheppard, for the appellant

S. Shaikh, for the respondent

Keywords: Criminal Law, Theft, Jury Instructions, Sentencing

R v Higgins, 2019 ONCA 191

[Juriansz, Pepall and Lauwers JJ.A.]

Counsel:

J. Couse, for the appellant

R. De Filippis, for the respondent

Keywords: Criminal Law, Robbery, Sentencing


ONTARIO REVIEW BOARD

Murray (Re), 2019 ONCA 179

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

J.M., acting in person

K. Bryan, amicus curiae

A. Derwa, for the Attorney General

J. Blackburn, for the Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

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