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Good evening.

In Alectra Utilities Corporation v Solar Power Network Inc, 2019 ONCA 332, the Court denied a stay of enforcement pending the seeking of leave to appeal to the Supreme Court of Canada.  Although there was a serious issue to be heard on the appeal in the event leave is granted, and the possibility of irreparable harm to the appellant in the event it could not recover payment from the respondent in the event the appeal was successful, the Court concluded that the balance of convenience favoured the respondent. The respondent was having liquidity problems and needed funds imminently to pay creditors. The risk of irreparable harm to the appellant was minimized by the fact that the respondent had assets that could be liquidated to repay the appellant. In addition, the appellant was worth billions, and the amount of the judgment ($14 million) was relatively small by comparison.

In Merino v ING Insurance Company of Canada, 2019 ONCA 326, the Court concluded that automobile insurers in Ontario do not have the option of unilaterally rescinding a contract of insurance ab initio under the common law as a result of an insured’s misrepresentation.  Instead, they are bound by the statutory scheme created by the Insurance Act, the Compulsory Automobile Insurance Act and the Statutory Conditions that spell out how to properly terminate a policy (15 day notice, during which time the policy remains in effect). To find otherwise would result in a lapse in coverage when an insured thought they had coverage, which would be contrary to the intention of automobile insurance scheme.

Other topics included another insurance dispute in the MVA context, deduction of collateral benefits in the MVA context, the distribution of assets between the general and limited partner in a limited partnership, medmal, sealing orders and commercial leases.

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 5pm, which will also be available by live webcast for those who cannot attend in person.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v BentPointes Protection Association and the “Anti-SLAPP Sextet”. The Supreme Court granted leave to appeal in both those decisions earlier this week. We will therefore have an opportunity to get a sneak preview at the arguments that Tim and Mark will be making before the highest court in the land.

Eliot Kolers, 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.

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 celebrating a Happy Orthodox Easter.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Merino v ING Insurance Company of Canada, 2019 ONCA 326

Keywords: Contracts, Insurance Law, Automobile Insurance, Termination, Rescission, Material Misrepresentation, Waiver, Abuse of Process, Insurance Act, RSO 1990, c I.8, ss. 233(1)(a)(ii), 233(3), 258(1), (4), (5), (11) & (14), Statutory Conditions (Automobile Insurance), O Reg 777/93, s. 11, Compulsory Automobile Insurance Act, RSO 1990, c C.25, Saskatchewan River Bungalows Ltd v Maritime Life Assurance Co, [1994] 2 SCR 490

White v St Joseph’s Hospital (Hamilton), 2019 ONCA 312

Keywords: Torts, Medical Negligence, Standard of Care, Causation, “But For” Test, Sacks v Ross, 2017 ONCA 773, Clements v Clements, 2012 SCC 32

Elbakhiet v Palmer, 2019 ONCA 333

Keywords: Civil Procedure, Sealing Orders, Open Court Principle, Rules of Civil Procedure, Rule 52.04, Courts of Justice Act, RSO 1990, c C.43, s. 137, Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, R v Mentuk, 2001 SCC 76, Dagenais v CBC, [1994] 3 SCR 835, H(ME) v Williams, 2012 ONCA 35

Ruddell v Gore Mutual Insurance Company, 2019 ONCA 328

Keywords: Contracts, Insurance Law, Automobile Insurance, Termination, Duty to Co-operate, Relief from Forfeiture, Insurance Act, RSO 1990, c I.8, s. 258(1), Statutory Conditions – Automobile Insurance, I Reg 777/93, s. 5(3), Reid v Gore Mutual Insurance, [1980] OJ No 750 (H Ct J), Kozel v The Personal Insurance Company, 2014 ONCA 130

Canadian Home Publishers Inc v Parker, 2019 ONCA 314

Keywords: Corporations, Partnerships, Limited Partnership, Dissolution, Residual Assets, Distribution, Statutory Interpretation, Standard of Review, Limited Partnerships Act, RSO 1990, c L. 16, ss. 8 & 24, Partnerships Act, RSO 1990, c P.5, s. 44, Heritage Capital Corp v Equitable Trust Co, 2016 SCC 19, Canadian National Railway v Canada (Attorney General), 2014 SCC 40

Alectra Utilities Corporation v Solar Power Network Inc, 2019 ONCA 332

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Supreme Court of Canada, Leave to Appeal, Alectra Utilities Corporation v Solar Power Network, 2019 ONCA 254, Arbitration Act, 1991, SO 1991, c 17, BTR Global Opportunity Trading Ltd v RBC Dexia Investor Services Trust, 2011 ONCA 620, Supreme Court Act, RSC 1985, c S.26, Livent Inc v Deloitte & Touche, 2016 ONCA 395, Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 616

Michail v Ontario English Catholic Teachers’ Association, 2019 ONCA 319

Keywords: Civil Procedure, Courts, Judicial Proceedings, Recordings, Open Courts Principle, Restoule v Canada (Attorney General), 2018 ONSC 114, R v Dunstan, 2017 ONCA 432, Courts of Justice Act, RSO 1990, c C.43, s. 136, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 17

Grieves v Parsons, 2019 ONCA 335

Keywords: Torts, MVA, Damages, Collateral Benefits,  Accident Benefits, Deductions, Civil Procedure, Costs, Offers to Settle, Insurance Act, RSO 1990, c I.8, Statutory Accident Benefits Schedule, O Reg 34/10, Rules of Civil Procedure, Rule 49, Bassandra v Sforza, 2016 ONCA 251

Fountain Tire (London Stoneybrook) Ltd v 2169728 Ontario Ltd, 2019 ONCA 340

Keywords: Contracts, Interpretation, Real Property, Commercial Leases

D’Souza v Brunel International Inc (ITECC Consulting), 2019 ONCA 339

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Trial, Striking of Trial List, Readiness for Trial, Third Party Production, Rules of Civil Procedure, Rule 48.11

Short Civil Decisions

Mississauga (City) v Mohenu, 2019 ONCA 318

Keywords: Provincial Offences, Appeals, Leave to Appeal, Extension of Time, Provincial Offences Act, RSO 1990, c P.33, s 131

Vetro v Sakran, 2019 ONCA 315

Keywords: Civil Procedure, Appeals, Abandonment, Failure to Appear

Song v MacPhee, 2019 ONCA 331

Keywords: Real Property, Adverse Possession

Gefen v Gaertner, 2019 ONCA 327

Keywords: Wills and Estates

Patterson v York Condominium Corporation No 70, 2019 ONCA 330

Keywords: Real Property, Condominium Law, Corporations, Governance

Merrifield v Canada (Attorney General), 2019 ONCA 336

Keywords: Costs

Gro-Bark (Ontario) Ltd v Eacom Timber Corporation, 2019 ONCA 341

Keywords: Contracts, Interpretation, Civil Procedure, Summary Judgment, Appeals, Sufficiency of Reasons

Criminal Decisions

R v Orton, 2019 ONCA 334

Keywords: Criminal Law, Dangerous Driving, Mischief to Property, Intimidation, Criminal Harassment, Escape from Lawful Custody, Causing a Disturbance, Sexual Offences, Disobeying a Court Order Without Lawful Excuse, Evidence, Credibility, Reliability, Prior Inconsistent Statements, Appeals, Sufficiency of Reasons, Criminal Code, RSC, 1985, c C-46, s 127(1), 129(a), 145(1)(a), 175(1)(a)(i), 249(1)(a), 264(1), 264(2)(d), 270(1)(b), 423(1)(e), 430(1)(c), 464(a), R v Kienapple, [1975] 1 SCR 729, R v WD, [1991] 1 SCR 742, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA), leave to appeal to SCC refused [2007] 1 SCR x (note), R v Howe (2005), 192 CCC (3d) 480 (Ont CA), R v REM, 2008 SCC 51, R v Kordrostami (2000), 47 OR (3d) 788 (CA), R v Kosikar (1999), 178 DLR (4th) 238 (Ont CA), leave to appeal to SCC refused (2000) 142 CCC (3d) vi

R v Strojny, 2019 ONCA 329

Keywords: Criminal Law, Sexual Interference, Sexual Assault with a Weapon, Uttering Threats, Evidence, Credibility, Reliability, Adverse Inferences, Collateral Fact Rule, Rule in Browne v Dunn, R v Lapensee, 2009 ONCA 646, R v Degraw, 2018 ONCA 51, R v NLP, 2013 ONCA 773, Browne v Dunn (1893), 6 R 67 (HL), R v Quansah, 2015 ONCA 237, leave to appeal to SCC refused, [2016] SCCA No 203, R v Jolivet, 2000 SCC 29, R v Lohrer, 2004 SCC 80, R v B(AR) (1998), 41 OR (3d) 361 (CA), affirmed 2000 SCC 30

R v Lall, 2019 ONCA 317

Keywords: Criminal Law, Robbery, Evidence, Information to Obtain, Tower Dump Production Orders, Cell Phone Tower Information, Cross-Examination, Privacy, Canadian Charter of Rights and Freedoms, s 8, s 24(2), R v Morelli, 2010 SCC 8, R v Pires; R v Lising, 2005 SCC 66, R v Garofoli, [1990] 2 SCR 1421, R v Ebanks, 2009 ONCA 851, R v Araujo, 2000 SCC 65, R v Plant, [1993] 3 SCR 281, R v Mahmood, 2011 ONCA 693

R v Nicholson, 2019 ONCA 320

Keywords: Criminal Law, Break and Enter, Assault, Possession of Stolen Property, Breach of Probation, Possession of Counterfeit Mark, Mischief to Property, Sentencing, R v O’Quinn (2002), 59 OR (3d) 321 (CA)

R v Cadieux, 2019 ONCA 303

Keywords: Criminal Law, Marijuana Cultivation, Controlled Drugs and Substances Act, SC 1996, c. 19

R v VS, 2019 ONCA 324

Keywords: Criminal Law, Assault, Sexual Assault, Sexual Interference

R v OK, 2019 ONCA 325

Keywords: Criminal Law, Sexual Assault

R v Horsford, 2019 ONCA 321

Keywords: Criminal Law, Drug Possession, Drug Trafficking

R v Hudson, 2019 ONCA 323

Keywords: Criminal Law, Lawful Arrest, Right to Counsel, Canadian Charter of Rights and Freedoms, s 10(b)

R v RK, 2019 ONCA 337

Keywords: Criminal Law, Sexual Interference

R v Pham, 2019 ONCA 338

Keywords: Criminal Law, Drug Possession, Drug Trafficking, Evidence, Admissibility, Bad Character, Hearsay, Right against Self-Incrimination, Appeals, Sufficiency of Reasons, Canada Evidence Act, RSC, 1985, c C-5, s 23, Canadian Charter of Rights and Freedoms, s 7, 13, R v St Pierre, 2016 ONCA 173, R v Miller (1991), 5 OR (3d) 678 (CA), R v Morin, [1988] 2 SCR 345, R v Rodgerson, 2015 SCC 38, R v White, [1988] 2 SCR 72, R v Smith, 2016 ONCA 25, R v Portillo (2003), 174 OAC 226 (CA), R v Caesar, 2016 ONCA 599, R v Khan, 2001 SCC 86, R v Van, 2009 SCC 22, R v Sekhon, 2014 SCC 15, R v Nedelcu, 2012 SCC 59, R v White, [1999] 2 SCR 417, R v Fitzpatrick, [1995] 4 SCR 154, R v Mendez, 2018 ONCA 354, R v REM, 2008 SCC 51

R v Hadi, 2019 ONCA 332

Keywords: Criminal law, Evidence, Credibility

Constitutional Decisions

Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 342

Keywords: Criminal Law, Sentencing, Incarceration, Segregation, Constitutional Law, Right to Life, Liberty and Security of the Person, Canadian Charter of Rights and Freedoms, s 7, 11(h), 12, 15, Corrections and Conditional Release Act, SC 1992, c 20, s 31–37, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491, Canadian Civil Liberties Association v Canada (Attorney General), 2018 ONCA 1038, Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62, British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 5, Canada (AG) v Descheneaux, 2017 QCCA 1238


CIVIL DECISIONS

Merino v ING Insurance Company of Canada, 2019 ONCA 326

[Feldman, Pepall and Pardu JJ.A.]

Counsel:

M.W. Shulgan and D.W. Leschied, for the appellants

D.A. Wallace and S.T. Miller, for the respondents

Keywords: Contracts, Insurance Law, Automobile Insurance, Termination, Rescission, Material Misrepresentation, Waiver, Abuse of Process, Insurance Act, RSO 1990, c I.8, ss. 233(1)(a)(ii), 233(3), 258(1), (4), (5), (11) & (14), Statutory Conditions (Automobile Insurance), O Reg 777/93, s. 11, Compulsory Automobile Insurance Act, RSO 1990, c C.25, Saskatchewan River Bungalows Ltd v Maritime Life Assurance Co, [1994] 2 SCR 490

Facts:

The appellant, a pedestrian, was catastrophically injured when she was struck by a car driven by TK.  TK and his wife, SA, were joint owners of the car.  They had applied for automobile insurance coverage over three months before the accident and the respondent insurer had issued a one-year policy.  However, because of misrepresentations in the application regarding SA’s driving record, the respondent insurer purported to rescind the policy shortly after issuing it, a couple of months before the accident.  TK did not drive the car from then until the day of the accident.

After obtaining judgment against TK, among others, the appellants commenced the action under appeal against the respondent insurer under s. 258(1) of the Insurance Act, RSO 1990, c I.8 (the “Insurance Act” or the “Act”) on the basis that the insurance contract had not been properly terminated by the respondent, and TK and SA were in fact insured by the respondent on the date of the accident.

The motion judge dismissed the appellants’ action by way of summary judgment.  He found that the respondent insurer was entitled to rescind the insurance contract based on a material misrepresentation, making it void ab initio; that it had done so effectively; and that, as a result, s. 258(1) was not available to the appellants, as there was no contract with the respondent that provided indemnity to the at-fault driver or owner at the time of the accident.

IssueS:

(1) Are the appellants entitled to recover against the respondent under s. 258(1) of the Insurance Act if the contract was validly rescinded?

(2) Is an automobile insurer entitled to rescind an automobile insurance contract at common law, making it void ab initio, based on a misrepresentation in the application?

(3) If the contract was not validly rescinded, is the appellants’ recovery limited to the statutory minimum of $200,000 under s. 251 of the Insurance Act, based on the defence of knowing misrepresentation, asserted under s. 258(11)?

(4) Are the appellants barred from recovery under s. 258(1), based on the doctrine of waiver or abuse of process, because they initially pursued uninsured motorist claims against another insurer?

Holding:

Appeal allowed.

Reasoning:

(1) No.  The Court agreed with the motion judge that s. 258 can have no application where an automobile insurance policy is no longer in existence at the date of the accident because it was properly and effectively terminated by either party before that date.  Effectively, s. 258(1), (4) & (5) apply to give an injured third party the right to collect his or her judgment against the at-fault driver from that driver’s insurer where the insurer issued an automobile insurance policy that provided for indemnity, regardless of any misrepresentation that the insured may have made in the application for insurance.  Whether or not the appellant was entitled to recover against the respondent under s. 258(1) of the Insurance Act depended on whether or not the respondent was entitled to terminate the contract by rescinding the contract ab initio at common law and if the respondent did so.

(2) No.  The Court found that that an automobile insurer in Ontario does not have the option of unilaterally rescinding a contract of insurance at common law ab initio, but is bound by the statutory scheme contained in the Insurance Act, the Compulsory Automobile Insurance Act, RSO 1990, c C.25, and associated regulations.  The rights and obligations of insurers and insureds, as well as those of injured third parties, are governed by those statutory provisions.

The Court found that the motion judge’s conclusion on this issue was inconsistent with the statutory scheme created by the Compulsory Automobile Insurance Act and the Insurance Act.  If an insurer were permitted to rescind an insurance contract at common law ab initio, a person who believed they were operating a vehicle with insurance could have that contract rescinded with retroactive effect, putting the person in automatic contravention of the Compulsory Automobile Insurance Act, a result which is clearly inconsistent with the intent of the legislature.  The purpose of these requirements is to ensure that a person who drives a car always knows whether they are insured, so that they can take steps to bridge any gap in their coverage, both for their own benefit and for the benefit of other drivers.

The scheme of the Act and its regulations prescribes the rights and obligations of the insured and the insurer under the automobile provisions, requires strict compliance, and provides an orderly and predictable set of consequences for compliance and non-compliance.  That predictable set of consequences would be undermined if an insurer could circumvent the requirements of the Act by rescinding the contract at common law, making it void ab initio.  Furthermore, ss. 233 and 258 of the Act are consistent with the legislative scheme.  A misrepresentation does not render a contract void under s. 233, and also, because the automobile insurance contract remains in effect, third parties injured by the insured or the insured’s automobile retain the right to recover the losses they suffer from the insured’s insurer under s. 258.  Consequently, allowing an insurer to rescind at common law for misrepresentation would undermine the policy of the legislature in ss. 233 and 258 to provide certain statutory accident benefits to every person who obtains a policy of insurance, including by misrepresentation, and to provide protection to innocent third parties.

(3) No.  The Court found that the appellants’ entitlement was not limited to the $200,000 because the respondent did not prove the defence of knowing misrepresentation.  The appellants were entitled to the policy limit of $1,000,000, subject to the waiver and abuse of process arguments.  The Court stated that in order to rely on the knowing misrepresentation defence, the insurer must prove that “the applicant for a contract knowingly misrepresent[ed] or fail[ed] to disclose in the application any fact required to be stated therein”: Insurance Act, s. 233(1)(a)(ii).  Further, s. 233(3) specifies that “[n]o statement of the applicant shall be used in defence of a claim under the contract unless it is contained in the signed written application therefor…”.  Only TK signed the application, while the misrepresented facts related only to SA’s application for insurance.  Therefore, the first issue to consider was whether or not TK signed the contract as an agent for SA.

On the record before the motion judge, there was no basis to find that TK signed the application for insurance as SA’s agent or on her behalf.  He denied doing so, and there was no evidence from the respondent that it had any contrary belief.  Since SA was an applicant for insurance who did not sign the application either personally or by her agent, the respondent could not rely on the defence of knowing misrepresentation contained in ss. 233(1)(a)(ii) and (3).  Secondly, it was not possible to find on a balance of probabilities that TK was the applicant who made the misrepresentations and knowingly misrepresented the facts about SA.  The issue was not explored in the evidence that was put before the motion judge, and therefore there was no basis to draw that inference from the record.

(4) No.  The respondent argued that by suing another insurer, Allianz, under the uninsured motorist provisions of TK’s mother’s policy with Allianz on the basis that TK’s vehicle was an uninsured vehicle, the appellants waived their right to claim against the respondent under s. 258.  The respondent relied on the Supreme Court of Canada’s decision in Saskatchewan River Bungalows Ltd v Maritime Life Assurance Co, [1994] 2 SCR 490.  The Court stated that while counsel for the appellants was aware that the respondent had issued a policy to TK and SA, the reason the appellants resorted to a claim against Allianz under the uninsured motorist coverage was because the respondent denied it had a contract with them on the date of the accident.  Saskatchewan River Bungalows provides that, in order for waiver to be established, the waiving party must have had full knowledge of its rights and an unequivocal and conscious intention to abandon those rights.  Not only was that clearly not the case here, but it was inappropriate for the respondent to suggest that it was when it was the respondent that told the appellant’s counsel that it had no contract with the at-fault driver.

Furthermore, under s. 258(14), the respondent had the right to apply to be added as a third party to the tort action.  It did not take advantage of that right.  The respondent also did not provide any authority for the proposition that s. 258 could be waived.  Finally, the Court dismissed the respondent’s argument that this action was an abuse of process because there was clearly no election to sue an insurer under uninsured coverage because the appellants were misled by the respondent regarding the status of the policy and first acted on that information.

In summary, the Court determined that an automobile insurer in Ontario cannot rescind an automobile insurance contract at common law ab initio, and the respondent’s letter purporting to do that was not effective. Because the letter did not give 15 days’ notice of termination, it also did not have the effect of terminating the contract under s.11 of the applicable Statutory Conditions (Automobile Insurance). The contract therefore remained in effect on the date of the accident. The appellants were entitled to sue the respondent under s. 258 of the Act to directly recover the amount of the judgment awarded up to the policy limits. Because the respondent did not establish on the record that TK knowingly misrepresented facts in the application or acted as the agent of SA, the respondent has not established a defence under s. 258(11) of the Act. It is accordingly liable for the full amount of the policy limits.

White v St Joseph’s Hospital (Hamilton), 2019 ONCA 312

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

P. Harte and G. Michelucci, for the appellants

J. DiFederico and S. Clements, for the respondents

Keywords: Torts, Medical Negligence, Standard of Care, Causation, “But For” Test, Sacks v Ross, 2017 ONCA 773, Clements v Clements, 2012 SCC 32

Facts:

The appellant suffered a bowel leak after a bowel surgery.  The leak was a rare but recognized risk and a potentially life-threatening complication.  The appellant developed sepsis and entered septic shock, which required remedial surgery, antibiotics, and a stay in the Intensive Care Unit.  He later developed an unrelated bowel perforation that necessitated a longer hospital stay.  The appellant commenced a claim for damages based on the delay in treatment of that complication, because the leak was not detected for some time.  The trial judge dismissed the action against the hospital, the respondent nurse (the “nurse”), and a doctor.  The appellant appealed the decision only in respect of the hospital and the nurse (collectively, the “respondents”).

IssueS:

(1) Was the nurse negligent in her treatment of the appellant, thus delaying treatment of the leak?

(2) Was the hospital negligent for failing to ensure that the correct antibiotic was properly administered to the appellant?

(3) Did the trial judge err in concluding that the medication error, combined with the nurse’s alleged negligence, exacerbated the appellant’s injury and therefore “caused or contributed” to it?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  Although the appellant’s expert evidence suggested that the nurse fell below the standard of care in the course of treatment, the trial judge preferred the evidence of the respondents’ expert, who indicated that the nurse did not fall below the standard of care.  The appellant additionally argued that several “abnormal changes” in his condition (a drop in blood pressure, a darkening of his urine colour, and ongoing pain) were indicative of the nurse falling below the standard of care.  The Court confirmed that the trial judge’s finding that the nurse met the standard of care in respect of all of these issues was a conclusion available to the trial judge based on the available evidence.  Accordingly, the Court declined to interfere with this finding.

(2) No.  The Court noted that the evidence was equivocal regarding the administration of the first dose of medication, as there was some confusion as to whether a checkmark next to an order form meant that the order had been transcribed into the medication administration record, or if the dose had been actually administered.  The appellant’s expert testified that the checkmark meant that the order had been transcribed.  However, because the order did not actually appear in the medication administration record, the trial judge rejected that interpretation.  She concluded instead that the checkmark meant that the medication had been administered to the appellant.

The trial judge also concluded that a doctor’s note regarding “medication error” meant that the appellant mistakenly got an additional dose of medication – not that no medication was administered.  The Court again affirmed that this conclusion was available to the trial judge on the evidence.  Lastly, the Court affirmed the trial judge’s findings with respect to the timing of the appellant’s medication being administered, which in turn led her to conclude that the standard of care was not breached.  This interpretation was available to her on the evidence.

(3) No.  Noting that the test for causation remained the “but for” test prescribed by the Supreme Court in Clements v Clements, the Court of Appeal began by reiterating the trial judge’s observation that the appellant’s infectious disease expert essentially conceded that the appellant’s medical outcome was unavoidable, thus failing to prove that the delay in treatment caused or contributed to his injuries.

The Court rejected the appellant’s arguments that the trial judge misstated the test for causation and had made palpable and overriding errors of fact.  First, it was available on the evidence for the trial judge to conclude that the appellant’s second stay in the hospital was unavoidable, regardless of the nurse and hospital’s conduct.  Second, the trial judge was not confused about the proper test for causation.  She did not require the appellant to establish that the respondents’ alleged negligence was the “most significant” cause of harm.  On the contrary, the findings of the trial judge were that the appellant had failed to establish any harm, because the appellant’s outcome would have been no different whether or not the alleged negligence occurred.

Lastly, the Court rejected the appellant’s contention that he merely had to establish a causal connection between the alleged breach of the standard of care and the appellant’s injury, since the quantum of damages had been agreed upon by the parties.  However, the Court observed that the trial judge merely did not require proof of particular pecuniary loss.  However, it was still incumbent upon the appellant to prove a causal link between the delay in treatment and the appellant’s injuries.  That was not proven here.

Elbakhiet v Palmer, 2019 ONCA 333

[Doherty, Simmons and Pardu JJ.A.]

Counsel:

J.Y. Obagi, for the appellants

K.P. Nearing, for the respondents

Keywords: Civil Procedure, Sealing Orders, Open Court Principle, Rules of Civil Procedure, Rule 52.04, Courts of Justice Act, RSO 1990, c C.43, s. 137, Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, R v Mentuk, 2001 SCC 76, Dagenais v CBC, [1994] 3 SCR 835, H(ME) v Williams, 2012 ONCA 35

Facts:

The issues on appeal concern the propriety of a December 2017 sealing order (the “2017 Sealing Order”) in relation to psychometric testing documents produced and marked as exhibits during the 2012 trial of a personal injury action arising out of a 2007 car accident.  One of the appellants (the “Appellant”) claimed damages against the respondents in part for post-concussive syndrome and related impairments.  Dr. Munson conducted psychometric testing of the Appellant and was called as an expert witness for the respondents.  It was her opinion that the Appellant had deliberately underperformed and was exaggerating her claims.  The Appellant’s counsel sought production of the psychometric testing documents (the “Documents”) to challenge the reliability of some of the testing.  A March 2012 consent order required production of the Documents to counsel for both parties (the “Consent Order”).  The Consent Order prohibited counsel from providing copies to anyone other than an Ontario psychologist to assist counsel with the action, required the return of the materials produced to Dr. Munson within seven days of the final disposition of the action, and set out a temporary sealing order in the event any of the materials became exhibits, to expire 60 days after judgment was entered.  Judgment was entered on July 9, 2012, and the temporary sealing order expired on September 7, 2012.  However, the action was not finally disposed of until January 22, 2015, when the appellants’ application to the Supreme Court of Canada for leave to appeal the costs award was dismissed.

Appellants’ counsel confirmed that the original exhibits were returned to Dr. Munson.  However, he retained copies of the Documents.  Given that they were marked as exhibits at trial and that the temporary sealing order had expired, he took the position that they were now in the public domain.  In March 2015, the respondents moved for an order extending the time for seeking a permanent sealing order with respect to the Documents produced under the Consent Order and making the temporary sealing permanent.  The 2017 Sealing Order amended the Consent Order and made it permanent.  In doing so, the motion judge considered the need to balance necessity and proportionality in accordance with decisions such as Sierra Club of Canada v Canada (Minister of Finance), R v Mentuk, and Dagenais v CBC.  He found that protecting the integrity of test procedures was an important interest worthy of protection, and concluded that making the temporary sealing order permanent several years after the fact would not seriously affect public confidence in the judicial system or erode the open courts principle.  The motion judge also concluded there was no apparent impact on or prejudice to the appellants.

Issue:

(1) Was an order sealing the Documents from public view still available in December 2017?

(2) Did the trial judge err in applying the Sierra Club/Dagenais/Mentuk test?

Holding:

Appeal allowed.

Reasoning:

(1) No.  Under s. 137 of the Courts of Justice Act, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.  The Court stated that given that the Documents were no longer in the court’s possession as of December 2017, no purpose was served by amending the Consent Order.  The Documents were not part of any court record and they were not available for review at the court house by members of the public.

(2) Yes.  The Court stated that to obtain a confidentiality order, the requesting party must satisfy a two-part test: 1) the order must be necessary to prevent a serious risk of an important interest; and 2) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, must outweigh its deleterious effects, including the effects on the right to free expression, which includes the public interest in open and accessible court proceedings.

To meet the necessity part of the test, the requesting party must show an important interest that can be expressed as a public interest, a real and substantial risk that is well-grounded in the evidence and that poses a serious threat to the interest in question, and no other reasonable alternative to the order sought.  The Court saw at least two errors in the motion judge’s approach.

First, the motion judge concluded there was an important public interest in the confidentiality of the Documents without examining them.  He did not consider to what extent they were already in the public domain through the trial judge’s reasons on the admissibility voir dire, through the transcripts of Dr. Munson’s testimony on the voir dire, or through the trial.  The Court held the case was distinguishable from Sierra Club because in that case, the appellant did not own the documents the respondent sought to have produced.  China owned the documents and would only authorize their production if a confidentiality order was obtained, which made it an all or nothing case.

Second, the Court held that the motion judge erred in failing to consider, as part of the proportionality analysis, the public interest in access to material that would facilitate cross-examination of Dr. Munson in other proceedings.  Appellants’ counsel explained how he had used some of the documents at issue to cross-examine Dr. Munson at trial.

The Court set aside the 2017 Sealing Order amending the Consent Order.

Ruddell v Gore Mutual Insurance Company, 2019 ONCA 328

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

Counsel:

C.K. Boggs and J.L. Hunter, for the appellant

D.F. Murray and S.A. Setrakian, for the respondent

Keywords: Contracts, Insurance Law, Automobile Insurance, Termination, Duty to Co-operate, Relief from Forfeiture, Insurance Act, RSO 1990, c I.8, s. 258(1), Statutory Conditions – Automobile Insurance, I Reg 777/93, s. 5(3),  Reid v Gore Mutual Insurance, [1980] OJ No 750 (H Ct J), Kozel v The Personal Insurance Company, 2014 ONCA 130

Facts:

The respondent brought an action pursuant to s. 258(1) of the Insurance Act, RSO 1990, c I.8 for the payment of insurance monies in satisfaction of the settlement of an action for damages suffered as a result of a single vehicle accident.  The driver of the vehicle pleaded guilty to dangerous driving causing bodily harm.  The owner of the vehicle was the mother of the driver.

The action was determined by way of summary judgment.  The motion considered the issue of which of two insurance companies, Gore Mutual Insurance (“Gore”) or Allstate Insurance Company of Canada (“Allstate”) should satisfy the judgment.  Gore argued that the owner of the vehicle breached the insurance policy because she did not co-operate with Gore in contravention of s. 5(3) of the Statutory Conditions – Automobile Insurance, I Reg 777/93 (the “Statutory Conditions”).  In particular, it was alleged that the owner did not update her address.

The motion judge held that Gore was liable for the judgment because the owner of the vehicle had not breached her insurance policy.  In the event that the owner did breach the Gore insurance policy, the motion judge found that the owner was entitled to relief from forfeiture.  Gore appealed the motion judge’s decision.

Issue:

(1) Did the motion judge err in finding that the Gore insurance policy was not breached?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the owner of the vehicle did not breach the Gore insurance policy.  The breach of the duty to co-operate must be substantial.  The language of s. 5(3) of the Statutory Conditions is broad and requires the insured to co-operate in the defence of an action.  It does not require that the insured update its insurer regarding a change of address.  There was no evidence that Gore sought more detailed information from the owner of the vehicle than she had already provided.  Therefore, the owner of the vehicle did not substantially fail to co-operate with Gore.

Canadian Home Publishers Inc v Parker, 2019 ONCA 314

[Feldman, Pepall and Nordheimer JJ.A.]

Counsel:

M. Gottlieb and R. Atkins, for the appellant

M. Gelowitz, A. Hirsh and J. Heller, for the respondents

Keywords: Corporations, Partnerships, Limited Partnership, Dissolution, Residual Assets, Distribution, Statutory Interpretation, Standard of Review, Limited Partnerships Act, RSO 1990, c L. 16, ss. 8 & 24, Partnerships Act, RSO 1990, c P.5, s. 44, Heritage Capital Corp v Equitable Trust Co, 2016 SCC 19, Canadian National Railway v Canada (Attorney General), 2014 SCC 40

Facts:

The appellant, the corporation Canadian Home Publishers Inc., appealed from the judgment of the application judge that dissolved a limited partnership, Canadian Home Publishers, as a consequence of the death of its sole limited partner, D, and awarded D’s estate a 50% share in the value of the residual assets of the partnership.  The only issue was whether the application judge was correct in finding that any residual assets, remaining after distribution of the amounts contemplated by s. 24 of the Limited Partnerships Act, RSO 1990, c L. 16 (“LPA”), were to be divided equally between D, as the sole limited partner, and the appellant as the sole general partner.  There was no limited partnership agreement or any agreement as to what would happen on D’s death.

The application judge held that while s. 24 of the LPA provided for the distribution of capital contributions and profits on dissolution of the limited partnership, the LPA was silent in respect of the distribution of the residual assets of the limited partnership.  The application judge concluded that there was a gap in the LPA and turned to the Partnerships Act, RSO 1990, c P.5 to fill that gap, since the Partnerships Act is applicable to all partnerships, including limited partnerships.  Section 44 of the Partnerships Act provides that the ultimate residue, if any, of a partnership is to be divided among the partners in the proportion in which profits are divisible, and the application judge concluded that the residue should be divided 50/50.

Issue:

(1) Did the trial judge err in finding that D was entitled to share equally in the residual assets of the limited partnership in the absence of an agreement to that effect?

Holding:

Appeal allowed.

Reasoning:

(1) Yes.  The application judge erred in his conclusion that D was entitled to share equally in the ultimate residual assets, and erred in importing into the LPA the residual distribution provision found in s. 44 of the Partnerships Act.  The Court first noted that correctness is the applicable standard of review since the question turns on the interpretation of a statute: Heritage Capital Corp v Equitable Trust Co, 2016 SCC 19, at para 23; Canadian National Railway v Canada (Attorney General), 2014 SCC 40 at para 33.  The Court then considered the provisions of the LPA, stating that on a plain reading of the LPA, a limited partner has very strict and defined rights and obligations, which do not include the right to participate in the residual value of the partnership on dissolution.

The Court stated that had it been the intent of the Legislature to accord that right to limited partners, presumably the LPA would have so provided.  The clear effect of the LPA is to give to the general partner all rights to any residue that may exist after dissolution.  That conclusion is consistent with the broad rights and obligations that the general partner enjoys.  It is consistent with the plain wording of s. 8 of the LPA, which provides the general partner with all the rights and obligations of a partner in an ordinary partnership.  It is also consistent with the limited rights and obligations of a limited partner as set out in the LPA.  Therefore, the contrary conclusion reached by the application judge did not sit comfortably with the inherent structure of a limited partnership under the LPA.  Moreover, even if one could find proper route to have recourse to s. 44 of the Partnerships Act, s. 44 would not apply to a limited partner.

Alectra Utilities Corporation v Solar Power Network Inc, 2019 ONCA 332

[Paciocco J.A. (Motion Judge)]

Counsel:

G. MacKenzie and B. MacKenzie, for the moving party

N. Read-Ellis, for the responding party

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Supreme Court of Canada, Leave to Appeal, Alectra Utilities Corporation v Solar Power Network, 2019 ONCA 254, Arbitration Act, 1991, SO 1991, c 17, BTR Global Opportunity Trading Ltd v RBC Dexia Investor Services Trust, 2011 ONCA 620, Supreme Court Act, RSC 1985, c S.26, Livent Inc v Deloitte & Touche, 2016 ONCA 395, Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 616

Facts:

The parties entered in a contract that was ultimately terminated by the applicant.  The respondent invoked the contract’s arbitration clause, challenging the applicant’s decision to terminate.  The arbitrator found that the applicant had not exercised its discretion to terminate in good faith, and awarded damages for lost profits, plus interest and costs.  The applicant brought an application to set aside the arbitrator’s award, relying on s. 46(1)3 of the Arbitration Act, 1991 to claim that the damages award was “beyond the scope of the agreement”.  The application judge set aside the arbitrator’s decision, but the Court of Appeal reversed the application judge’s holding to restore the damages award.

The applicant sought leave of the Supreme Court of Canada to appeal the Court’s decision.  At this time, the respondent was attempting to collect on the damages it was awarded by an arbitrator, and which were reinstated by the Court.  The applicant therefore applied to the Court for a stay of the execution of the order pending disposition of the leave to appeal application.

Issue:

(1) Should the Court grant a stay of the execution of the order pending the disposition of the leave to appeal application?

Holding:

Application dismissed.

Reasoning:

(1) No.  The Court first noted that the test for imposing a stay pending appeal requires the moving party to show three things: 1) that it has raised a serious issue to be adjudicated, 2) that it will suffer irreparable harm if a stay is not granted, and 3) that the balance of convenience favours a stay.  These three components of the test are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.

Regarding the first factor, the Court observed that the “serious issue” analysis is modified when a party is seeking a stay of a decision of the Court of Appeal pending an application for leave to appeal.  In such circumstances, the application judge must make a preliminary assessment of the merit of the leave application, taking into consideration the stringent leave requirements in the Supreme Court Act.  In particular, the application judge will focus on whether the case is of public or national importance.  For the purposes of a stay motion, this factor imports a low threshold.

The applicant argued a serious issue of public importance existed in two respects: first, in settling the proper approach to interpreting contracts when identifying the jurisdiction an arbitrator has been given; and second, in relation to the appropriate standard of review for appellate review of a first-instance review of an arbitral award.  Although the Court was skeptical that the applicant would successfully argue in its leave application that these constituted issues of public or national interest, the Court nevertheless found that the low threshold of establishing a serious issue had been met given that there was arguably contradictory Court of Appeal authority, and given that the respondent had in fact successfully made similar arguments in seeking leave to appeal the application judge’s findings to the Court of Appeal.

Regarding the “irreparable harm” factor, the Court concluded that although there was a risk of irreparable harm to the applicant as a result of the respondent’s financial problems (in particular, its debts and its illiquidity), this risk should not be overstated.  The Court noted that even if the respondent were to collect the entire damages award, it would require only half of that amount to repay its creditors; thus, there was no basis to believe that the entire damages award would be put at risk if a stay were not ordered.  Second, the respondent had assets it could monetize in time to repay the applicant, if required.  Third and finally, the respondent had viable claims in respect of other contracts that were worth a considerable amount.

Regarding the balance of convenience, the Court concluded that it favoured denying the application for a stay of enforcement of the order.  Given the respondent’s liquidity problems, enforcement of the order would allow the respondent to pay its creditors, and would allow it to compete for lucrative contracts.  In contrast, the applicant had earnings and assets in the billions.  While there was a modest risk that, if the stay were denied, the applicant might end up losing money, that risk paled in comparison to the risk to the respondent if the stay were granted.

Michail v Ontario English Catholic Teachers’ Association, 2019 ONCA 319

[Rouleau, Miller and Fairburn JJ.A.]

Counsel:

M.M., in person

C. Perri, for the Ontario English Catholic Teachers’ Association

A. Ranalli, for the Attorney General of Ontario

L. Ledgerwood, for the London District Catholic School Board

A. Hart, for the Ontario Labour Relations Board

Keywords: Civil Procedure, Courts, Judicial Proceedings, Recordings, Open Courts Principle, Restoule v Canada (Attorney General), 2018 ONSC 114, R v Dunstan, 2017 ONCA 432, Courts of Justice Act, RSO 1990, c C.43, s. 136, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, s. 17

Facts:

M.M. brought an application for judicial review of the decisions of her union and the Ontario Labour Relations Board to the Superior Court.  The appropriate avenue for judicial review of these decisions was the Divisional Court.  Accordingly, the Superior Court made various procedural orders to regularize the process.

M.M. appealed those orders to the Court of Appeal and brought a motion seeking exemptions to the Rules of Civil Procedure (“Motion 1”).  She was granted additional time to file materials but the rest of her motion was dismissed.  The Respondents then brought a motion to quash M.M.’s appeal on the grounds that the Court of Appeal lacked jurisdiction to hear it (“Motion 2”).  That motion was successful and the appeal was quashed.

M.M. brought a further motion to the Court of Appeal regarding the use of audio recordings from Motion 1 and Motion 2 (“Motion 3”).  In particular, M.M. sought: to dispense the requirement that she sign a standard undertaking to obtain audio recordings from Motion 1 and Motion 2; permission to transcribe Motion 1 and Motion 2; to direct the publication on the Court’s website of written reasons; and permission to challenge the constitutional validity and applicability of s. 136 of the Courts of Justice Act (“CJA”).  Motion 3 was dismissed.

M.M. brought a motion to review Motion 3.  At the outset of the motion to review, M.M. requested permission to video record the hearing and disseminate the recording.  Her request was based on the grounds that she should be permitted to record hearings in the court due to the constitutional principle that court proceedings are open to the public (the “Open Courts Principle”).

IssueS:

(1) Does the Open Courts Principle entitle parties to obtain and disseminate audio recordings of proceedings in the Court on their own terms?

(2) Did the motion judge err in dismissing Motion 3?

Holding:

Motion dismissed.

Reasoning:

(1) No, the Open Courts Principle does not automatically give parties permission to video record, stream, or archive court proceedings.  Rather, it is a constitutional principle that requires judicial discretion.  Judges have broad discretion under s. 136(3) of the CJA to authorize video recording, but that discretion requires reasons that relate to the circumstances of the particular case.  M.M. did not establish that this case was one where judicial discretion under s. 136(3) should have been exercised.  A mere distrust in the legal system does not justify the use of judicial discretion under s. 136(3).

(2) No. The motion judge did not err in dismissing M.M.’s request to obtain recordings from Motion 1 and Motion 2.  Recordings in the Court of Appeal are governed by s. 17 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario (the “Practice Direction”).  The Practice Direction allows for recordings to be made available only where: there is a request; it is for personal use; and the person requesting signs an undertaking.  Further, s. 17 prohibits dissemination of audio recordings unless there is a court order allowing it.  M.M. did not provide any reason that would grant a court order allowing her to disseminate.

Further, the motion judge was entitled not to publish his decision on the court’s website.  The motion judge had discretion in this regard and the operational decisions of the Court of Appeal are not subject to review.

Finally, the motion judge was correct in dismissing M.M.’s constitutional challenge of s. 136 of the CJA for lack of jurisdiction.  Constitutional challenges to a statute cannot be brought if there is no valid appeal.  By this point, M.M.’s appeal had already been quashed.

Grieves v Parsons, 2019 ONCA 335

[Doherty, Paciocco and Zarnett JJ.A]

Counsel:

D. Zuber and J. Tausendfreund, for the appellants

J. Lerman and A. Zaltz, for the respondent

Keywords: Torts, MVA, Damages, Collateral Benefits,  Accident Benefits, Deductions, Civil Procedure, Costs, Offers to Settle, Insurance Act, RSO 1990, c I.8, Statutory Accident Benefits Schedule, O Reg 34/10, Rules of Civil Procedure, Rule 49, Bassandra v Sforza, 2016 ONCA 251

Facts:

The parties were involved in a motorcycle accident that occurred in July 2012.  At trial, the jury awarded the respondent damages payable by the appellants in the following amounts: $50,000 for general damages, $61,000 for past lost income and $90,000 for future lost earnings.  The trial judge found that the respondent/plaintiff’s claim did not meet the threshold to fall within one of the exceptions in s. 267.5(5) of the Insurance Act, and therefore he disallowed the general (non-pecuniary) damages award.

The trial judge then considered what adjustments to the balance of the jury’s award would be required under the Insurance Act due, in part, to the respondent’s receipt of other payments.

The trial judge deducted long-term disability benefits and net past lost income from the jury’s award, neither of which were in dispute.  The trial judge deducted $33,821.77 on account of income replacement benefits paid to the respondent.  In doing so, he accepted the respondent’s position that the further sum of $2,887.94, which had also been paid, should not be included in the collateral benefits deduction as it arose from an overpayment by the insurer and the respondent was legally obliged to repay that amount to under s. 52(1) of the Statutory Accident Benefits Schedule, O Reg 34/10.

The trial judge also refused to deduct the $5,460 in short-term disability benefits that had been paid to the respondent. These benefits were paid in relation to a period of time when the plaintiff was not working, between May 2017 and July 2017.  The claim form submitted for those payments based the claim on an injury to the plaintiff’s left shoulder.  The trial judge had instructed the jury that any damages resulting from injuries to the respondent’s shoulder were not caused by the motorcycle accident of 2012, and he made a similar finding in his threshold decision.  He found that it was unlikely that there was any overlap between the jury’s award and the short-term disability payments.  Accordingly, they were not deductible under s. 267.8(1) of the Insurance Act.

As a result of the trial judge’s deductions, the respondent’s judgment totaled $72,317.78.  This exceeded the appellants’ Rule 49 offer of $70,000.  The respondent therefore received a costs award for the entire action.

The appellants challenged the trial judge’s refusal to deduct the overpayment of $2,887.94 and the short-term disability benefits of $5,460.  Further, the appellants asked that, in the event the Court did not vary the damages award, that it vary the costs award in the interest of proportionality, because the respondent’s judgment only narrowly exceeded the amount of the Rule 49 offer.

IssueS:

(1) Did the trial judge err in determining that the short-term disability benefits should not have been deducted from the jury’s award?

(2) Should the Court vary the costs award?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  The trial judge referred to his instruction to the jury that any damages resulting from the respondent’s left shoulder injury were not caused by the motorcycle accident, and to his conclusion on the threshold motion that the respondent’s left side shoulder pain was not causally related to the motorcycle accident.  The short-term disability benefits had been paid because of the respondent’s inability to work due to problems with his left shoulder.  The trial judge reasoned that, given the modest amount of the jury’s award, and the instruction he gave to the jury, it was unlikely that there was any overlap between the short term disability benefits provided for the plaintiff’s left shoulder injury, and the income loss awarded by the jury in relation to the plaintiff’s right shoulder injury.

The trial judge was in the best position to make this assessment, it was reasonable and was entitled to deference.

(2) No.  The Rule 49 offer was therefore not more favourable than the judgment obtained by the respondent.

The trial judge relied on correspondence from the insurer that had made the overpayment, notifying the respondent of his obligation to pay it back on the basis that the respondent had been working when he received it.  There was no dispute about the authenticity of that correspondence.  He also relied on the legal obligation to repay that amount under s. 52(1) of the Statutory Accident Benefits Schedule, which the respondent admitted.  The payment was made to the respondent by the insurer on the mistaken understanding that the respondent was not working, reclaimed by the insurer, and acknowledged as a legal repayment obligation by the respondent, is not a payment received or available for income loss and loss of earning capacity within the meaning of s. 267.8(1) of the Insurance Act.  Deducting such a payment from the jury’s award would not serve the purpose of s. 267.8 of the Insurance Act, preventing double recovery, which informs the interpretation of the provision’s language.

Fountain Tire (London Stoneybrook) Ltd v 2169728 Ontario Ltd, 2019 ONCA 340

[Doherty, Paciocco and Zarnett JJ.A.]

Counsel:

D.J. MacKeigan, for the appellant

M. Lernet and J.B. Brennan, for the respondent

Keywords: Contracts, Interpretation, Real Property, Commercial Leases

Facts:

The appellant brought an application to resolve a disagreement over the interpretation of a commercial lease between the appellant, as tenant, and the respondent, as landlord.  First, the appellant argued that the leased premises included a parking area owned by the City of London and licensed to the respondent.  Second, the appellant argued that the lease prohibited the respondent from leasing the premises to a third party.  The application judge found against the appellant on both points.

Issues:

(1) Did the application judge err in finding that the leased premises did not include a parking area owned by the City of London?

(2) Did the application judge err in finding that the respondent was entitled to lease the premises to third parties?

Holding:

Appeal allowed in part.

Reasoning:

(1) No. The application judge interpreted the word “Property” to exclude the parking area in question. No legal error was made in the judge’s interpretative reasoning. The application judge’s interpretation was entitled to deference.

(2) Yes. The application judge made a palpable and overriding error in finding that the lease allowed the respondent to lease the premises to third parties. The application judge’s findings were contrary to the clear language of the lease and the distinctions drawn in the language of the operative terms.

D’Souza v Brunel International Inc (ITECC Consulting), 2019 ONCA 339

[van Rensburg, Benotto and Harvison Young JJ.A.]

Counsel:

S. Dewart, for the appellant

C. Ingram, for the respondents

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Trial, Striking of Trial List, Readiness for Trial, Third Party Production, Rules of Civil Procedure, Rule 48.11

Facts:

The appellant’s employment with the respondent was terminated.  The appellant commenced an action claiming damages for wrongful dismissal.  Among other things, the appellant asserted that, in August 2003, he secured an agreement with a third party in respect of which he was entitled to significant commissions.  The appellant’s action was set down for trial, adjourned to successive sittings twice at the appellant’s request, and then struck from the trial list.  This is an appeal of an order of a motion judge refusing to restore the action to the trial list.

Issues:

(1) Did the motion judge err in her treatment of delay?

(2) Did the motion judge err in ignoring the respondents’ contribution to the delay as well as the court delay in scheduling his motion to restore the action to the trial list?

(3) Did the motion judge err in concluding that the action was not ready for trial?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  The Court found no error in the motion judge’s treatment of the relevant period of delay.  The appellant argued that the motion judge erred in her treatment of delay because she took into consideration the appellant’s earlier delays in prosecuting the action, which the appellant argues were irrelevant, and the motion judge failed to consider the appellants’ efforts to move the action along.  The Court found that the relevant period of delay was in relation to the appellants’ efforts to obtain production of documents, especially those in the hands of a third party.  The Court stated that while the motion judge referred to the appellant’s delay in commencing his action and then pursuing the action (until a timetable was set by the court at a status hearing), the focus of her analysis was on the appellant’s delay in pursuing documents in the hands of a third party that were relevant to the appellant’s claim for commissions.  It was this period of delay that was not explained adequately, or at all, by the appellant.

(2) No.  The Court saw no error in the motion judge’s conclusion that the appellant’s delay in pursuing the relevant documents, which was the relevant delay that the court needed to consider, was inexcusable and unexplained.  The appellant argued that the respondents contributed to the delay because they had notice of the particulars of the appellant’s claims and the need to preserve documents many years earlier and had also neglected or refused to produce records that would have support his claims.  The Court disagreed, stating that the respondents’ general obligation to secure and to produce relevant documents while litigation is outstanding did not explain or excuse the appellant’s continuous delay over the course of the action in pursuing documents that his counsel considered necessary to prove his claim.  There was nothing to suggest that the respondents were preventing the appellant from pursuing the documents he required or otherwise impeding the progress of the action.

(3) No.  The Court was not persuaded that the motion judge erred in any material way in her refusal to restore the appellant’s action to the trial list.  The appellant claimed that the motion judge made palpable and overriding errors, which amounted to an error in principle, when she concluded that the action was still not ready for trial.  In particular, the appellant claimed she was inappropriately dismissive of the documents provided by a third party, and she erred in suggesting that an accountant was required to interpret the codes set out in the spreadsheet.  The Court disagreed, finding that the motion judge’s conclusions about those documents and that the appellant still was not ready for trial were fully supported by the evidence before her.  It was also obvious that additional work was anticipated before the matter would be ready for trial.


SHORT CIVIL DECISIONS

Mississauga (City) v Mohenu, 2019 ONCA 318

[Feldman J.A. (Motion Judge)]

Counsel:

P.M., in person

V. Berdichevski, as amicus curiae

R.D. Ryan, for the respondent

Keywords: Provincial Offences, Appeals, Leave to Appeal, Extension of Time, Provincial Offences Act, RSO 1990, c P.33, s 131

Vetro v Sakran, 2019 ONCA 315

[Doherty, Paciocco and Zarnett JJ.A.]

Counsel:

D.V., in person

G. Philipupillai and D. Iny, for the respondents

Keywords: Civil Procedure, Appeals, Abandonment, Failure to Appear

Song v MacPhee, 2019 ONCA 331

[Tulloch, Hourigan and Fairburn JJ.A.]

Counsel:

B. Diamond, for the appellant

P. Gemmink, for the respondent

Keywords: Real Property, Adverse Possession

Gefen v Gaertner, 2019 ONCA 327

[van Rensburg, Benotto and Harvison Young JJ.A.]

Counsel:

G. Azeff and S. De Caria, for the moving party, R.R., the estate trustee

S. Thakker, for H.G.

R.B. Moldaver, Q.C., for H.G.

A.A. Blumenfled, for H.G.

Keywords: Wills and Estates

Patterson v York Condominium Corporation No 70, 2019 ONCA 330

[Tulloch, Hourigan and Fairburn JJ.A.]

Counsel:

M. Spears, for the appellant

M. Mackey, for the respondents

Keywords: Real Property, Condominium Law, Corporations, Governance

Merrifield v Canada (Attorney General), 2019 ONCA 336

[Juriansz, Brown and Huscroft JJ.A.]

Counsel:

S. Gaudet and J. Gorham, for the appellants

L. Young, J.K. Phillips and J.-O. Phillips, for the respondent

Keywords: Costs

Gro-Bark (Ontario) Ltd v Eacom Timber Corporation, 2019 ONCA 341

[Doherty, Paciocco and Zarnett JJ.A.]

Counsel:

M. Wells and J. Kim, for the appellants

D. Eichler and A. Yolles, for the respondent

Keywords: Contracts, Interpretation, Civil Procedure, Summary Judgment, Appeals, Sufficiency of Reasons


CRIMINAL DECISIONS

R v Orton, 2019 ONCA 334

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

Counsel:

N.M. Lutes, for the appellant

J. Hanna, for the respondent

Keywords: Criminal Law, Dangerous Driving, Mischief to Property, Intimidation, Criminal Harassment, Escape from Lawful Custody, Causing a Disturbance, Sexual Offences, Disobeying a Court Order Without Lawful Excuse, Evidence, Credibility, Reliability, Prior Inconsistent Statements, Appeals, Sufficiency of Reasons, Criminal Code, RSC, 1985, c C-46, s 127(1), 129(a), 145(1)(a), 175(1)(a)(i), 249(1)(a), 264(1), 264(2)(d), 270(1)(b), 423(1)(e), 430(1)(c), 464(a), R v Kienapple, [1975] 1 SCR 729, R v WD, [1991] 1 SCR 742, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA), leave to appeal to SCC refused [2007] 1 SCR x (note), R v Howe (2005), 192 CCC (3d) 480 (Ont CA), R v REM, 2008 SCC 51, R v Kordrostami (2000), 47 OR (3d) 788 (CA), R v Kosikar (1999), 178 DLR (4th) 238 (Ont CA), leave to appeal to SCC refused (2000) 142 CCC (3d) vi

R v Strojny, 2019 ONCA 329

[Strathy C.J.O., Rouleau and Miller JJ.A.]

Counsel: 

B.H. Greenspan and M.M. Biddulph, for the appellant

P.G. Cowle, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Assault with a Weapon, Uttering Threats, Evidence, Credibility, Reliability, Adverse Inferences, Collateral Fact Rule, Rule in Browne v Dunn, R v Lapensee, 2009 ONCA 646, R v Degraw, 2018 ONCA 51, R v NLP, 2013 ONCA 773, Browne v Dunn (1893), 6 R 67 (HL), R v Quansah, 2015 ONCA 237, leave to appeal to SCC refused, [2016] SCCA No 203, R v Jolivet, 2000 SCC 29, R v Lohrer, 2004 SCC 80, R v B(AR) (1998), 41 OR (3d) 361 (CA), affirmed 2000 SCC 30

R v Lall, 2019 ONCA 317

[Simmons, Lauwers and Trotter JJ.A.]

Counsel:

C. Rippell, for the appellant

F. Au, for the respondent

Keywords: Criminal Law, Robbery, Evidence, Information to Obtain, Tower Dump Production Orders, Cell Phone Tower Information, Cross-Examination, Privacy, Canadian Charter of Rights and Freedoms, s 8, s 24(2), R v Morelli, 2010 SCC 8, R v Pires; R v Lising, 2005 SCC 66, R v Garofoli, [1990] 2 SCR 1421, R v Ebanks, 2009 ONCA 851, R v Araujo, 2000 SCC 65, R v Plant, [1993] 3 SCR 281, R v Mahmood, 2011 ONCA 693

R v Nicholson, 2019 ONCA 320

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

J. Zita, for the appellant

S. Reid, for the respondent

Keywords: Criminal Law, Break and Enter, Assault, Possession of Stolen Property, Breach of Probation, Possession of Counterfeit Mark, Mischief to Property, Sentencing, R v O’Quinn (2002), 59 OR (3d) 321 (CA)

R v Cadieux, 2019 ONCA 303

[Feldman, Benotto and Brown JJ.A.]

Counsel:

D. Doucette, duty counsel

J. Legrand, for the respondent

Keywords: Criminal Law, Marijuana Cultivation, Controlled Drugs and Substances Act, SC 1996, c. 19

R v VS, 2019 ONCA 324

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

D. North, for the appellant

J. Cameron, for the respondent

Keywords: Criminal Law, Assault, Sexual Assault, Sexual Interference

R v OK, 2019 ONCA 325

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

J.R. Barrs, for the appellant

S. Shaikh, for the respondent

Keywords: Criminal Law, Sexual Assault

R v Horsford, 2019 ONCA 321

[Feldman, Brown and Benotto JJ.A.]

Counsel:

D.H., in person

M. Dineen, duty counsel

M. Comiskey, for the respondent

Keywords: Criminal Law, Drug Possession, Drug Trafficking

R v Hudson, 2019 ONCA 323

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

B. Vandebeek, for the appellant

K. Wilson, for the respondent

Keywords: Criminal Law, Lawful Arrest, Right to Counsel, Canadian Charter of Rights and Freedoms, s 10(b)

R v RK, 2019 ONCA 337

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

M. Dineen, for the appellant

J.A.Y. Trehearne, for the respondent

Keywords: Criminal Law, Sexual Interference

R v Pham, 2019 ONCA 338

[Rouleau, Miller and Fairburn JJ.A.]

Counsel:

M. Caterina, for the appellant

A. Shachter and J. Streeter, for the respondent

Keywords: Criminal Law, Drug Possession, Drug Trafficking, Evidence, Admissibility, Bad Character, Hearsay, Right against Self-Incrimination, Appeals, Sufficiency of Reasons, Canada Evidence Act, RSC, 1985, c C-5, s 23, Canadian Charter of Rights and Freedoms, s 7, 13, R v St Pierre, 2016 ONCA 173, R v Miller (1991), 5 OR (3d) 678 (CA), R v Morin, [1988] 2 SCR 345, R v Rodgerson, 2015 SCC 38, R v White, [1988] 2 SCR 72, R v Smith, 2016 ONCA 25, R v Portillo (2003), 174 OAC 226 (CA), R v Caesar, 2016 ONCA 599, R v Khan, 2001 SCC 86, R v Van, 2009 SCC 22, R v Sekhon, 2014 SCC 15, R v Nedelcu, 2012 SCC 59, R v White, [1999] 2 SCR 417, R v Fitzpatrick, [1995] 4 SCR 154, R v Mendez, 2018 ONCA 354, R v REM, 2008 SCC 51

R v Hadi, 2019 ONCA 332

[Juriansz, Watt and Harvison Young JJ.A.]

Counsel:

M. Tubie, for the appellant

R. Pinnock, for the respondent

Keywords: Criminal law, Evidence, Credibility


CONSTITUTIONAL DECISIONS

Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 342

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

Counsel:

J. Lisus, H.M. Rosenberg, L. Moscu and C.-A. Malischewski, for the responding party

K. Hucal, J. Provart and B. Bechard, for the moving party

Keywords: Criminal Law, Sentencing, Incarceration, Segregation, Constitutional Law, Right to Life, Liberty and Security of the Person, Canadian Charter of Rights and Freedoms, s 7, 11(h), 12, 15, Corrections and Conditional Release Act, SC 1992, c 20, s 31–37, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491, Canadian Civil Liberties Association v Canada (Attorney General), 2018 ONCA 1038, Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62, British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 5, Canada (AG) v Descheneaux, 2017 QCCA 1238

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