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Good evening.

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

In Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, the court upheld the constitutionality of two policies enacted by the College.  Each of policies required physicians who objected to providing certain medical procedures and pharmaceuticals on the basis of religious beliefs or freedom of conscience (such as medical assistance in dying, abortion and reproductive health services) to provide the patient with an effective referral to other practitioners or clinics.  The Court upheld the Divisional Court’s finding that while the policies infringed the individual doctor’s religious freedom, the policies were reasonable limits that were demonstrably justifiable in a free and democratic society. The Court agreed with the Divisional Court and found that the policies’ objective to facilitate equitable access for vulnerable patients to health care services was sufficiently pressing and substantial to warrant overriding individual doctors’ religious freedom.  The Court found that the policies fell within a range of reasonable alternatives to address the religious objections of physicians.

Other topics covered this week included the standing of a union member to challenge the legality of clauses in the union’s constitution that limited the ability of locals to disaffiliate from the parent union, compensatory spousal support, amending pleadings in an oppression case, an appeal from a jury’s determination of damages in an MVA case, constructive dismissal of a teacher, a dispute over a right of way, extension of time to comply with an order for security for costs, and extension of time to appeal an order refusing security for costs in the bankruptcy context.

Wishing everyone a Happy Victoria Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

de Jocas v. Moldow Enterprises Inc., 2019 ONCA 389

Keywords: Real Property, Easements, Rights-of-Way, Encroachments, Substantial Interference, Civil Procedure, Applications, Evidence, Registry Act, RSO 1990, c R.20, Fallowfield v Bourgault (2003), 68 OR (3d) 417 (CA), Mihaylov v 1165996 Ontario Inc, 2017 ONCA 116, Weidelich v de Koning, 2014 ONCA 736

Brown v. Hanley, 2019 ONCA 395

Keywords: Labour Law, Unions, Constating Documents, Contracts, Privity, Unconscionability, Civil Procedure, Standard of Review, Justiciability, Standing, Representative Proceedings, Orders, Declarations, Stays, Striking Pleadings, Fresh Evidence, Rules of Civil Procedure, Rules 12.08, 21.01(1)(b), 21.01(3)(a) & 21.01(3)(b), Labour Relations Act, 1995, SO 1995 c 1, Courts of Justice Act, RSO 1990 c C.43, s 97, Berry v. Pulley, 2002 SCC 40, Ewert v. Canada, 2018 SCC 30

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393

Keywords: Administrative Law, Regulated Professions, Doctors, Constitutional Law, Freedom of Conscience and Religion, Equality, Oakes Test, Doré/Loyola Framework, Standard of Review, Fresh Evidence, Canadian Charter of Rights and Freedoms, ss 1, 2(a), 7, 15(1), Regulated Health Professions Act, 1991, SO 1991, Health Professions Procedural Code, Sched 2, s 95(1.1), Professional Misconduct, O Reg 856/93, Medicine Act, 1991, SO 1991, c 30, Criminal Code, RSC 1985, c C-46, Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579, R v Oakes, [1986] 1 SCR 103, Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, Carter v Canada (Attorney General), 2015 SCC 5, Doré v Barreau du Quebec, 2012 SCC 12, Loyola High School v Quebec (Attorney General), 2015 SCC 12, Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31, Harper v Canada (Attorney General), 2004 SCC 33, Housen v Nikolaisen, 2002 SCC 33, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, College of Physicians and Surgeons of Ontario v Peirovy, 2018 ONCA 420, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, R v Big Drug Mart Ltd, [1985] 1 SCR 295, Syndicat Northcrest v Amselem, 2004 SCC 47, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, Trinity Western University v College of Teachers, 2001 SCC 31, R v Morgentaler, [1988] 1 SCR 30, Roach v Canada (Minister of State for Multiculturalism and Culture) (1994), 113 DLR (4th) 67 (FCA), Quebec (Attorney General) v A, 2013 SCC 5, R v Moriarity, 2015 SCC 55, RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, Gordon v Canada (Attorney General), 2016 ONCA 625, leave to appeal to SCC refused, [2016] SCCA No 444 and No 445, R v Swain, [1991] 1 SCR 933, Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, M v H, [1999] 2 SCR 3, Green v Law Society of Manitoba, 2017 SCC 20, Wynberg v Ontario (2006), 82 OR (3d) 561 (CA), leave to appeal to SCC refused, [2006] SCCA No 441, McInerney v MacDonald, [1992] 2 SCR 138, Norberg v Wynrib, [1992] 2 SCR 226

Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 3.02(1) & 56.01, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 193(e), Bankruptcy and Insolvency General Rules, C.R.C., c. 368, s. 3,  Issai v. Rosenzweig, 2011 ONCA 112, Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500,  Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Whitty v. Wells, 2019 ONCA 397

Keywords: Civil Procedure, Orders, Security for Costs, Extension of Time, Joint and Several Liability, Rules of Civil Procedure, Rule 56.06, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Margaret Grace Kerr v. CIBC World Markets et al., 2013 ONSC 7685

Dancy v. Mason, 2019 ONCA 410

Keywords: Family Law, Spousal Support, Compensatory Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Divorce Act, RSC 1985, c 3, s 17(4.1), 17(7), Hickey v Hickey, [1999] 2 SCR 518, Moge v Moge, [1992] 3 SCR 813, LMP v LS, 2011 SCC 64, Halliwell v Halliwell, 2017 ONCA 349, Brad-Jay Investments Ltd v Szijjarto (2006), 218 OAC 315 (CA), leave to appeal refused, [2007] SCCA No 92

DeBon v. Hillfield Strathallan College, 2019 ONCA 409

Keywords: Employment Law, Constructive Dismissal, Civil Procedure, Summary Judgment

Gopie v. Ramcharran, 2019 ONCA 402

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Jury Charge, Causation, Damages, Evidence, Admissibility, Character Evidence, Expert Evidence, Hearsay, Medical Records, Costs

Klassen v. Beausolei, 2019 ONCA 407

Keywords: Corporations, Oppression, Contracts, Share Purchase Agreements, Debtor-Creditor, Civil Procedure, Amending Pleadings, Rules of Civil Procedure, Rule 26.01, Business Corporations Act, R.S.O., c. B.16, s. 248, 158844 Ontario Ltd v. State Farm Fire and Casualty Co., 2017 ONCA 42, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, Davis v. East Side Mario’s Barrie, 2018 ONCA 410, Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3

Short Civil Decisions

Devathasan v. Ablacksingh , 2019 ONCA 386

Keywords: Appeals, Hearing Together, Adjournments

Fulton v. Koa Aloha Inc, 2019 ONCA 408

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Options, Statute of Frauds, R.S.O. 1990, c. S.19

Travelbrands Inc. v. Bramalea Travel Centre Inc., 2019 ONCA 404

Keywords: Contracts, Privity, Agency, Summary Judgment

Criminal Decisions

R. v. Koningen, 2019 ONCA 391

Keywords: Criminal Law, Fraud, Criminal Code, s. 380(1)(a), Evidence, Credibility, R. v. Morrissey, (1995) 22 O.R. (3d) 514 (C.A.)

R. v. Praljak, 2019 ONCA 394, 2019 ONCA 394

Keywords: Criminal Law, Second Degree Murder, Evidence, R v. Walle, 2012 SCC 41

R. v. Carson, 2019 ONCA 396

Keywords: Provincial Offences, Lobbying, Lobbying Act, ss 7 and 10.11(1)

R. v. Clarke, 2019 ONCA 403

Keywords: Criminal Law, Possession of a Firearm Obtained by Crime, Possession of Property Obtained by Crime, Break and Enter with Intent to Commit an Indictable Offence

R. v. Charlton, 2019 ONCA 400

Keywords: Criminal Law, Attempted Murder, Discharging Firearm with Attempt to Injure, Procedural and Natural Justice, Duty to Provide Reasons, Canada Evidence Act, R.S.C. 1985, c. C-5, R. v. Headley, 2018 ONCA 915, 368 C.C.C. (3d) 308, R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, leave to appeal dismissed [2017] S.C.C.A. No. 225

R. v. Dhaliwal, 2019 ONCA 398

Keywords: Criminal Law, Endorsement, Sentencing, R. v. Danvers, (2005), 199 C.C.C. (3rd) 490 (Ont. C.A.)

R. v. Gerson-Foster, 2019 ONCA 405

Keywords: Criminal Law, Possession of Cocaine for the Purposes of Trafficking, Possession of Proceeds of Indictable Offence, Unreasonable Search and Seizure, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Criminal Code, R.S.C. 1985, c. C-46, s. 354(1), Canadian Charter of Rights and Freedoms, ss. 8 & 9

R. v. Kwok, 2019 ONCA 406

Keywords: Criminal Law, Endorsement, Possession of Narcotics, Canadian Charter of Rights and Freedoms, s. 24(2)

R. v. Zirkind, 2019 ONCA 401

Keywords: Criminal Law, Trafficking in Property Obtained By Crime, Possession of Property Obtained by Crime, Sentencing, R v W.(D.), [1991] 1 S.C.R. 742


CIVIL DECISIONS

de Jocas v. Moldow Enterprises Inc., 2019 ONCA 389

[Watt, Pardu and Nordheimer JJ.A.]

Counsel:

B. N. Radnoff and L. Woods, for the appellants

B. Bussin, for the respondents

Keywords: Real Property, Easements, Rights-of-Way, Encroachments, Substantial Interference, Civil Procedure, Applications, Evidence, Registry Act, RSO 1990, c R.20, Fallowfield v Bourgault (2003), 68 OR (3d) 417 (CA), Mihaylov v 1165996 Ontario Inc, 2017 ONCA 116, Weidelich v de Koning, 2014 ONCA 736

Facts:

The parties and one non-party individually owned five neighbouring cottage properties.  To access these cottages, the cottagers used a road known as Brewers Close (the “Road”).  It was alleged that the Road was the location of an easement over the five properties.  Without entire agreement among the cottagers, the respondents altered the Road’s route as it crossed their property.  In so doing, the respondents blocked the original route along the lot lines between their property and the two neighbouring properties.

The appellants commenced an application for an injunction prohibiting the respondents from obstructing their rights of way over the Road and for a mandatory order requiring the respondents to remove the boulders and trees that they had used to block the original route.  The respondents commenced a counter-application for a declaration that the right of way over the Road was invalid because of uncertainty and vagueness.  In the alternative, the respondents argued that their alteration did not constitute a substantial interference of the right of way’s use.

The application judge did not determine whether the easement was valid.  He stated that he was unable to do so based on the evidentiary record.  The application judge did determine that the easement was not invalid on the basis of vagueness or uncertainty.  Assuming the easement was valid, he concluded that there was no substantial interference of the right of way’s use.

Issue:

(1) Was the evidentiary record before the application judge sufficient to permit him to reach his conclusions?

Holding:

Appeal allowed.

Reasoning:

(1) No, the evidentiary record did not allow for the necessary findings that would sustain the application judge’s conclusions.  Title documents should have been placed before the court and in particular the Road’s precise dimensions and location, as reflected in the title documents or as established by extrinsic evidence.

The application judge noted that the current deed spoke of an existing semi-circular driveway and that there was no way to tell if the Road in existence was the same as the road in existence at the time the easements were created.  He also noted that it was unclear whether the Road was described in the original property grants or whether it arose subsequently.

It is possible that the Road was never referred to in any title documents prior to the title documents currently held by the parties were created.  It could be that, prior to that time, the Road was a simple road without formal recognition.  In that case, extrinsic evidence may be required to establish the extent of the Road at the time of the original grant.  Without knowing the extent of the easement established by the original grant, it could not be determined whether there was substantial interference with such easement. The application was therefore remitted to the Superior Court for a new hearing with better evidence, or a trial of the issues.

Brown v. Hanley, 2019 ONCA 395

[Rouleau, van Rensburg and Benotto JJ.A]

Counsel:

J. McLuckie and A. Shaw, for the appellant/respondent by way of crossappeal

S. Dewart, T. Gleason and A. Lei, for the respondents/appellants by way of cross-appeal

B. Shell, for the Amalgamated Transit Union (ATU), Local 113

Keywords: Labour Law, Unions, Constating Documents, Contracts, Privity, Unconscionability, Civil Procedure, Standard of Review, Justiciability, Standing, Representative Proceedings, Orders, Declarations, Stays, Striking Pleadings, Fresh Evidence, Rules of Civil Procedure, Rules 12.08, 21.01(1)(b), 21.01(3)(a) & 21.01(3)(b), Labour Relations Act, 1995, SO 1995 c 1, Courts of Justice Act, RSO 1990 c C.43, s 97, Berry v. Pulley, 2002 SCC 40, Ewert v. Canada, 2018 SCC 30

Facts:

The Amalgamated Transit Union (International) (the “International”) was an international trade union headquartered in the United States. The appellant, Lawrence J. Hanley, was the International’s president. The respondents were four rank and file members of the International’s Toronto-based affiliate, the Amalgamated Transit Union (ATU), Local 113 (“Local 113”).

Relations between the members of Local 113 and the International were governed by the International’s Constitution and General By-Laws of the Amalgamated Transit Union (the “Constitution”). The respondents brought an action in the Superior Court seeking, among other things, a declaration that certain sections of the Constitution were void for unconscionability.

The respondents argued that the impugned provisions of the Constitution prevent members of Local 113 from freely deciding whether or not to disaffiliate from the International and should therefore be declared unconscionable and of no force or effect. In their view, the provisions achieve this effect by:

  1. allowing 10 members of Local 113 to block a disaffiliation vote;
  2. requiring Local 113 to forfeit its property to the International in the event of disaffiliation; and
  3. imposing sanctions against Local 113 or its members for expressing dissent or attempting to disaffiliate.

In response to the action, the appellant brought a motion to strike or stay the action on various grounds under Rule 21.01 of the Rules of Civil Procedure. Local 113, which obtained leave to intervene as an added defendant to the action, supported the appellant’s motion.

The motion judge granted a temporary stay of the action but dismissed the balance of the motion. He found that the action presented arguable issues which the respondents had capacity to raise, and which the court had jurisdiction to determine. However, the motion judge held that the action was premature, and that the respondents were required to first exhaust the International’s constitutional amendment process before seeking relief in the court. The action was temporarily stayed on this basis.

The appellant, on his own behalf and on behalf of all members of the International, appealed the dismissal of the motion to strike. The respondents cross-appealed the temporary stay. Local 113 supported the position of the appellant on both the appeal and cross-appeal.

Issues:

(1) Did the motion judge err in dismissing the motion to strike?

(2) Did the motion judge err in temporarily staying the action?

Holding:

Appeal and cross-appeal dismissed.

Reasons:

The Court found that the motion judge did not err in dismissing the motion to strike. The Court first noted that the standard of review of the motion judge’s decision to dismiss the motion to strike was correctness, as the decision determined questions of law. In considering the motion judge’s decision with respect to Rule 21.01(1)(b), the Court considered arguments with respect to unconscionability and justiciability. The Court found that the motion judge correctly disposed of the issue of unconscionability. The appellant submitted that the statement of claim failed to plead the requisite elements of unconscionability. Local 113 adopted this submission, and in addition, submitted that union constitutions are not ordinary commercial contracts and should not be subject to the common law doctrine of unconscionability.

The Court disagreed, finding there was no reason to eliminate the doctrine of unconscionability in the context of this case. As confirmed by the Supreme Court in Berry v. Pulley, 2002 SCC 40, union contracts, as contracts of adhesion, entail an inherent inequality of bargaining power. The respondents alleged that the International took advantage of this dynamic by incorporating what they described as fundamentally inequitable provisions into the Constitution. There was no indication that the respondents received legal advice or that they would have been able to negotiate the terms of the union contract had they received it. The claim of unconscionability was therefore arguable and should not have been struck at the pleadings stage.

Next, the Court rejected the appellant’s arguments relating to justiciability. The appellant submitted that the motion judge erred in his Rule 21.01(1)(b) analysis by finding the existence of a justiciable dispute between the parties, despite the fact that the respondents failed to plead the infringement of any individual right or entitlement. Absent an allegation that the International disciplined or otherwise took action against the respondents for attempting to pursue disaffiliation, the appellant argued the claim was not justiciable.

The Court rejected this submission, finding that the respondents sought declaratory relief concerning the legality of specific provisions in the Constitution. Courts have jurisdiction to grant such relief under their inherent jurisdiction and pursuant to s. 97 of the Courts of Justice Act. A declaratory judgment is available “where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought”: Ewert v. Canada, 2018 SCC 30 at para 81. Here there was a real question as to the legality of various provisions in the Constitution. The question was raised by the respondents who had an interest in raising it. The appellant, on the other hand, had a clear interest in opposing the declaration sought. Accordingly, a court had discretion to resolve the dispute by declaration. If the declaration was granted, the dispute would be settled between the parties and therefore, the motion judge correctly found the dispute to be justiciable.

The Court then considered appellant’s argument, supported by Local 113, that the motion judge erred in misconstruing the issue with respect to capacity under Rule 21.01(3)(b). The motion judge concluded that the respondents had capacity to sue as parties to the contract. The motion judge relied on Berry v. Pulley in concluding that the respondents had standing to bring their action. The Court agreed that, pursuant to Berry v. Pulley, the respondents would have the right to bring an action against their union to assert their individual claims, and in particular, noted that per Berry v Pulley, the relationship between a union and its members is unique. The Court found that union contracts are distinct from commercial contracts in two additional respects to those laid out in Berry v Pulley. First, union contracts result from a process of deliberation among members who share certain interests in common as workers. The union as a legal entity plays no oppositional role in this process, even though it becomes a party to the resulting contract with its members. A second distinguishing feature of union contracts flows from the democratic character of union membership. Unlike parties to a typical commercial contract, individual parties to a union contract become members of that union. However, while the union contract is unique, and while common law contractual principles may need to be adapted in this context, none of this changed the fact that the respondents were parties to the contract with the capacity to sue.

The Court did note that, although the motion judge’s conclusion with respect to the respondents’ capacity to sue appeared dipositive, it did not appear to have addressed the issue of the respondents’ representative capacity on behalf of all of the other members of Local 113 absent a representative order under rule 12.08. Furthermore, he did not address the appellant’s broader concerns that the matters could not be limited to the four claimants. The Court decided that given the novelty of this situation, these issues could not be determined on a final basis at this stage of the appeal and without the pleadings being amended.

Finally, the Court rejected the appellant’s arguments with respect to lack of jurisdiction under Rule 21.01(3)(a). The appellant submitted that the motion judge identified several provisions of the Labour Relations Act, 1995, SO 1995 c 1 (the “LRA”) that were pertinent to many parts of the claim, but then erred in subsequently determining that the court, rather than the Labour Relations Board, had jurisdiction over the claim. The Court found that the Board previously held that its mandate under the LRA does not include overseeing the internal governance of trade unions. This was supported by a long line of jurisprudence of the courts confirming that, when a member joins a union, a contract is created between the member and the trade union, and an action may be brought by a member against the union for breach of contract: Berry v Pulley at paras 48-49.

(2) No. The Court upheld the terms of the stay. The Court first stated that the motion judge’s decision to impose a temporary stay of the action was discretionary in nature. The cross-appeal thus attracted a deferential standard of review. The respondents wished to set aside the motion judge’s order granting a temporary stay of the action, and this was directly related to the appellant’s motion to adduce fresh evidence detailing the steps taken by the parties to amend the Constitution through internal union channels since the issuance of the motion judge’s order. The Court rejected the respondents’ argument that this fresh evidence should not be admitted because it was not relevant and would not have changed the result of the motion, and agreed that the fresh evidence should be admitted.

The Court then rejected the respondents’ argument that the motion judge made three alleged errors in imposing the temporary stay. Firstly, the Court rejected the respondents’ argument that the motion judge erred by applying administrative law principles governing judicial review of internal union decisions, rather than prejudice-based common law principles governing stays of civil actions framed in contract. In the Court’s view, the results would have been the same regardless of which principles were applied. Given the novelty of the claim, the motion judge’s decision to impose a temporary stay was reasonable in the circumstances. Secondly, the Court rejected the respondents’ argument the motion judge misinterpreted the Constitution to erroneously conclude that it provided a reasonable internal remedy that the respondents could pursue in lieu of a court action. The fresh evidence was directly relevant to this argument, and if the proposed amendments were approved, the respondents would obtain precisely the relief they were seeking. The notion that the Constitution provided no reasonable internal remedy was belied by these developments. Finally, the Court rejected the respondents’ argument that the motion judge fashioned an inadequate remedy as part of his stay order that failed to protect union members other than the respondents from retaliation for pursuing disaffiliation. The motion judge canvassed the terms of the stay with the parties. Furthermore, the Court did not read his order narrowly and noted that the respondents did not bring forward fresh evidence of actual retaliation. Absent such evidence, the argument that the stay order provided inadequate protection was merely speculative.

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393

[Strathy C.J.O., Pepall and Fairburn JJ.A.]

Counsel:

E. Meehan, Q.C., for the appellants the Christian Medical and Dental Society of Canada, the Canadian Federation of Catholic Physicians’ Societies, Dr. Michelle Korvemaker, Dr. Betty-Ann Story, Dr. Isabel Nunes, Dr. Agnes Tanguay and Dr. Donato Gugliotta

A. Polizogopoulos, for the appellant Canadian Physicians for Life

L. Brownstone and Ruth Ainsworth, for the respondent

S. O’Brien and K. Segal, for the intervener Women’s Legal Education and Action Fund Inc.

R. Agarwal and K. Findlay, for the intervener Canadian Civil Liberties Association

K. Doctor and M. Dill, for the intervener Dying with Dignity Canada

E. Davis and G. McKeown, for the interveners Catholic Civil Rights
League, Faith and Freedom Alliance and Protection of Conscience Project

T. D. Chapman-Smith and S. M. Lake, for the intervener Ontario
Medical Association

M. Fenrick and K. Janmohamed, for the interveners Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario and Canadian Professional Association for Transgender Health

A. Honner, for the intervener Justice Centre for Constitutional Freedoms

D. Warren, D. B.M. Ross and S. E. Mix-Ross, for the interveners The Evangelical Fellowship of Canada, The Assembly of Catholic Bishops of Ontario and the Christian Legal Fellowship

G. M. Sidlofsky, for the intervener B’nai Brith of Canada League for Human Rights, the Vaad Harabonim of Toronto and the Centre for Israel and Jewish Affairs

Keywords: Administrative Law, Regulated Professions, Doctors, Constitutional Law, Freedom of Conscience and Religion, Equality, Oakes Test, Doré/Loyola Framework, Standard of Review, Fresh Evidence, Canadian Charter of Rights and Freedoms, ss 1, 2(a), 7, 15(1), Regulated Health Professions Act, 1991, SO 1991, Health Professions Procedural Code, Sched 2, s 95(1.1), Professional Misconduct, O Reg 856/93, Medicine Act, 1991, SO 1991, c 30, Criminal Code, RSC 1985, c C-46, Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579, R v Oakes, [1986] 1 SCR 103, Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, Carter v Canada (Attorney General), 2015 SCC 5, Doré v Barreau du Quebec, 2012 SCC 12, Loyola High School v Quebec (Attorney General), 2015 SCC 12, Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31, Harper v Canada (Attorney General), 2004 SCC 33, Housen v Nikolaisen, 2002 SCC 33, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, College of Physicians and Surgeons of Ontario v Peirovy, 2018 ONCA 420, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, R v Big Drug Mart Ltd, [1985] 1 SCR 295, Syndicat Northcrest v Amselem, 2004 SCC 47, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, Trinity Western University v College of Teachers, 2001 SCC 31, R v Morgentaler, [1988] 1 SCR 30, Roach v Canada (Minister of State for Multiculturalism and Culture) (1994), 113 DLR (4th) 67 (FCA), Quebec (Attorney General) v A, 2013 SCC 5, R v Moriarity, 2015 SCC 55, RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, Gordon v Canada (Attorney General), 2016 ONCA 625, leave to appeal to SCC refused, [2016] SCCA No 444 and No 445, R v Swain, [1991] 1 SCR 933, Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, M v H, [1999] 2 SCR 3, Green v Law Society of Manitoba, 2017 SCC 20, Wynberg v Ontario (2006), 82 OR (3d) 561 (CA), leave to appeal to SCC refused, [2006] SCCA No 441, McInerney v MacDonald, [1992] 2 SCR 138, Norberg v Wynrib, [1992] 2 SCR 226

Facts:

The appellants challenged the constitutionality of two policies (the “Policies”) enacted by the College of Physicians and Surgeons of Ontario (the “College”).  The Policies each required physicians who objected to providing certain medical procedures or pharmaceuticals (such as medical assistance in dying (“MAiD”), abortion and reproductive health services) on the basis of religion or conscience to provide the patient with an “effective referral”.  An effective referral was defined as “a referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency.”  The Policies did not require physicians to personally provide the services to which they objected, except in an emergency where it was necessary to prevent imminent harm to a patient (collectively, the “Requirements”).

The College released a “Fact Sheet” which provided guidance to physicians on compliance with the Requirements.  It noted that physicians could refer or assign the task to another, a designate, to make the referral to a non-objecting physician, other non-objecting health care professional or an agency charged with facilitating referrals for the health care service.  In the case of both Policies, the referral could be made to someone other than a physician, including a non-physician staff member, another non-objecting health care professional (such as a nurse practitioner) or an agency charged with facilitating referrals for patients.

In the Divisional Court, the appellants argued that the Policies and the Requirements infringed their freedom of conscience and religion under s 2(a) of the Charter, and that the Requirements obliged them to be complicit in procedures that offended their religious beliefs.  The appellants also argued that the Requirements discriminated against physicians based on their religion, and infringed their equality rights under s 15(1) of the Charter.  The Divisional Court dismissed the appellants’ applications, finding that while the Policies infringed their freedom of religion, the infringement was justified under s 1 of the Charter because the Policies were reasonable limits that were demonstrably justified in a free and democratic society.  The Divisional Court did not consider whether freedom of conscience was engaged and dismissed the s 15(1) claim entirely.  On appeal, the appellants and the College both took issue with the Divisional Court’s balancing analysis under the proportionality component of the Oakes analysis.

The Divisional Court found that: the Oakes framework applied to the s 1 analysis and it rejected the College’s submission that the Doré/Loyola framework applied; correctness was the applicable standard for the review of the Policies’ constitutionality; the Requirements infringed the individual appellants’ religious freedom under s 2(a) of the Charter because the effect of the Policies was that some of the individual appellants were not free to practice medicine in accordance with their religious beliefs; having found an infringement of s 2(a), the consideration of freedom of conscience was unnecessary; and the appellants failed to demonstrate that the Policies imposed a burden or denied a benefit and infringed s 15(1).

With respect to the Oakes analysis, the Divisional Court found that: the objective of the Requirements, to facilitate equitable access for patients to health care services, was sufficiently pressing and substantial to warrant overriding the appellants’ religious freedom; the Policies addressed a “reasoned apprehension of harm”, namely the deprivation of equitable access to health care, particularly for vulnerable populations, in the absence of effective referral; the Requirements were rationally connected to the goal of equitable access to health services and it accepted the College’s evidence about the important role played by family physicians as “gatekeepers” or “navigators” in the health care system; and vulnerable patients would be deprived of equitable access to health care in the absence of the Requirements and therefore there was a rational connection because it was reasonable to conclude that the Requirements would facilitate patient access to care.

With respect to minimal impairment, the Divisional Court found that: the alternative means proposed by the appellants did not meet the College’s objectives in a real and substantial manner; regulations in other Canadian jurisdictions impose similar requirements to those adopted by the College; and the Requirements satisfied the Oakes minimal impairment test because they fell within a range of reasonable alternatives to address the conscientious and religious objections of physicians.  With respect to proportionality, the Divisional Court noted three contextual considerations relevant to balancing: first, that the Charter conferred a right to equitable access to medical services; second, that physicians have no right to practice medicine; and third, that physicians in Ontario practice in a single-payer, publicly-funded health care system, which is structured around patient-centered care and they have a duty not to abandon patients.  In the event of a conflict, the patients’ interests always come first.

The Divisional Court found that the Policies’ salutary effects ensured equitable access to health care by preventing: a delay in access to medical services; loss of eligibility or denial of care for desired services; and the stigma or emotional distress associated with a physician’s denial of requested medical services.  While deleterious effects were possible, there were alternatives.  For those physicians whose objections could not be addressed by the Fact Sheet’s options, the physicians could change the nature of their practice.  The Policies’ deleterious effects, while not trivial, were less serious than outright exclusion from the practice of medicine.  In balancing the salutary and deleterious effects, the Divisional Court concluded that it was reasonable to expect on the evidence and logic that the Requirements would make a positive difference in ensuring equitable access to healthcare, in circumstances where a physician objected to the provision of requested medical services.  For vulnerable individuals, the appellants’ proposed model would interfere with the ability of such individuals to access health care.

The appellants submitted that requiring a direct, individualized referral was unnecessary, because reasonable alternatives could achieve the same result, while respecting religious freedom.  Providing readily-available, generalized health care information and a referral to Ontario’s Care Coordination Service (the “CCS”) (which provides MAiD information and services), Telehealth (which provides general health care information) or other informational resources strikes a reasonable balance between religious freedom and equitable access to health care.

Issues:

(1) What is the applicable standard of review and constitutional framework?

(2) Do the Policies infringe the appellants’ freedom of conscience and religion under s 2(a)?

(3) Do the Policies infringe the appellants’ equality rights under s 15(1)?

(4) Is the infringement of the appellants’ religious freedom justified under s 1?

Holding:

Appeal dismissed.

Reasoning:

(1) Since the Divisional Court selected and applied the correctness standard (i.e., a question of law) to the Policies, the standard of review employed by the Court of Appeal is also the correctness standard.  The parties agreed that the appeal’s outcome is unaffected by the choice of standard of review and framework because the purpose of both frameworks (i.e., Oakes and Doré/Loyola) is to determine whether the Policies unreasonably limit the appellants’ Charter rights or freedoms.  Thus, the Court of Appeal left open the question of which standard of review and framework ought to be applied in these circumstances and applied the standard and framework chosen by the Divisional Court (i.e., correctness and Oakes).

(2) Yes.  The College conceded the sincerity of belief and interference with religious freedom.  The individual appellants’ have a sincere religious belief that human life is sacred, that MAiD and abortion are sinful and that complicity in either practice is equally sinful.  The individual appellants’ religious faith is central to their identities.  For them, providing a patient with an effective referral to a physician who provides MAiD or an abortion would be the same as performing the procedures themselves.  Expert evidence supported the notion that an act of referral is a form of direct cooperation in the act which makes the physician complicit.

The Divisional Court correctly concluded that at least some of the individual appellants were not free to practice medicine in accordance with their religious beliefs as a result of the Requirements.  It was correct in concluding that the interference with the appellants’ religious freedom was neither trivial nor insubstantial.  Like the Divisional Court, the Court of Appeal found it unnecessary to examine freedom of conscience since the Policies infringed religious freedom and since the appellants’ claim was ground in religious freedom.  In addition, the evidentiary record was insufficient to support an analysis of freedom of conscience.

(3) No.  The Divisional Court correctly held that the Policies do not have the effect of reinforcing, perpetuating or exacerbating a disadvantage or promoting prejudice against religious physicians.  Nor do they restrict access to a fundamental social institution or impede full membership in Canadian society.  The Policies represent an attempt to balance equitable access to health care with physicians’ religious beliefs.  As clarified by the Fact Sheet, the Policies provide an appropriate balance for many physicians.  Physicians who do not regard the Fact Sheet’s options as acceptable can transition to other areas of medicine in which these issues of faith or conscience are less likely to arise, if at all.

(4) Yes.

The parties agreed that the Policies’ Requirements were limits “prescribed by law”.  The Divisional Court identified the purpose of the Requirements as the facilitation of equitable patient access to health care services.  It characterized physicians as “gatekeepers” in a publicly-funded health care system, with duties not to abandon their patients and to put their patients’ needs ahead of their own.  The Divisional Court correctly articulated the Requirements’ purpose.  It found that this purpose was pressing and substantial.

  • Rational Connection between the Means and the Objective

The Divisional Court correctly found a rational connection between the Requirements and the stated purpose.  The limits on physicians’ religious freedom would likely further the goal of equitable access to health care.  The Court of Appeal agreed that, as a matter of logic and common sense, requiring objecting physicians to give an effective referral for MAiD, abortion or reproductive health services would promote equitable patient access to those health care services.

  • Minimal Impairment of the Right or Freedom by the Means

(i) Evidence of Harm

The minimal impairment question asks whether there are less harmful means of achieving a legislative goal.  Harm must be considered in context.  The record confirmed the pivotal role of family physicians as the key point of access to the services at issue for the majority of patients.  The evidence also demonstrated that given the manner in which health care is currently practiced and made available in Ontario, effective referral is the key to accessing services of all kinds.  The evidence confirmed that issues such as MAiD, abortion and reproductive health services are difficult issues for patients to raise and to discuss, even with a trusted family physician.  Some of these decisions frequently confront already vulnerable patients: those with financial, social, educational or emotional challenges; those who are old, young, poor or addicted to drugs; those with mental health challenges or physical or intellectual disabilities; those facing economic, linguistic, cultural or geographic barriers; and those who do not have the skills, abilities or resources to navigate their own way through a vast and complicated health care system.

The evidence also established that decisions concerning many of the relevant procedures are time-sensitive – obviously so in the case of MAiD, abortion and emergency contraception.  Delay in accessing these procedures can prevent access to them altogether.  MAiD and abortion carry the stigmatizing legacy of several centuries of criminalization grounded in religious and secular morality.  This stigmatization is still evident in the medical community and it can serve as an obstacle and outright barrier to these procedures.  There is compelling evidence that patients will suffer harm in the absence of an effective referral given the importance of family physicians as “gatekeepers” and “navigators” in the health care system.

Actual harm need not be demonstrated.  Concerns relating to vulnerable patients’ safety as a result of deprivation of access to health care services were conclusively established.  The next question is whether these concerns can be addressed by less impairing means.

(ii) Less Impairing Means

The Divisional Court carefully examined the College’s evidence concerning its studies and consultations preceding the Policies’ adoption.  These included an analysis of alternatives, including variants of the “self-referral” model proposed by the appellants (i.e., utilizing CCS and Telehealth).  It found that none of the alternatives represented a less drastic means of achieving the Policies’ objectives in a real and substantial manner and that therefore, the rights of the individual appellants were impaired no more than necessary.

The Divisional Court found that the “self-referral” model entailed a risk that vulnerable populations would not be able to access the requested medical services or would not be able to do so in a timely fashion.  It also noted that the appellants’ proposals were designed to preserve their rights, and were not directed, as they should have been, to promoting the objective of equitable access to health care.  The Court of Appeal agreed with the Divisional Court’s reasons which were firmly rooted in the evidence.  The appellants failed to demonstrate any errors.

On appeal, the appellants advanced a “generalized information” model which they admitted is a different label for the “self-referral” model that the Divisional Court rejected.  This model would permit physicians to provide patients with information concerning resources, such as CCS or Telehealth.  This model places the burden on the patient to self-refer to find a physician.  This may result in a delay in obtaining time-sensitive medical services or it may foreclose access to care altogether.  The loss of the personal support of a trusted physician would reasonably be expected to leave a patient with feelings of rejection, shame and stigma.  Left to their own devices when they need the most personal support and advice, patients would be left to negotiate the system armed with brochures, telephone numbers and websites.

In the case of MAiD, expecting patients to navigate themselves through the system is unrealistic and ignores the fact that delay is a significant practical concern in the event that the patient loses the capacity to consent.  In the case of HIV/AIDS and transgender patients, religious objections can be a barrier to accessing health care.  Comments fueled by religious convictions can reasonably be expected to cause stigma and shame.  Women from marginalized communities may lack the necessary knowledge of the system, skills or resources to seek out and obtain reproductive health services independently.  The evidence established that access to abortion and contraception is “uneven” in Canada and that the invocation of religious objections by physicians impedes access to abortion, contraception and other procedures and pharmaceuticals.

The appellants failed to demonstrate that a “generalized information” model would address the needs of vulnerable patients seeking the most intimate and urgent medical advice and care.

(iii) Policies in Other Jurisdictions

The law does not require that the College choose the least intrusive or the least restrictive means, but only that the means chosen fall within a range of reasonable alternatives, while limiting the Charter right of freedom as little as reasonably possible.  The fact that other jurisdictions have established policies that the appellants regard as less impairing is not persuasive.  The College was not bound to accept the “lowest common denominator”, whether it was labelled as “self-referral” or “generalized information”, when it found through its own studies that the model would not protect vulnerable patients.  Deference is owed to the College’s policy judgment regarding how best to balance competing interests.  The College is a self-governing professional body with institutional expertise in developing policies and procedures governing the practice of medicine and was in a better position to make such policies and procedures than a court.

More importantly, the alternatives proposed by the appellants are directed to minimizing the Policies’ burden on objecting physicians, not to advancing the goal of equitable access to MAiD, abortion and reproductive health services.  Indeed, the appellants’ alternative would compromise the College’s goal, because they would require already vulnerable patients to navigate the system on their own, without personal assistance from their physicians, whom they entrust to act as their navigators for health care services.  This result would impair equitable access to health care.

  • Proportionality between Salutary and Deleterious Effects

The Policies’ salutary effects enhance equitable access to MAiD, abortion and reproductive health services and reduce or eliminate barriers, delays, anxiety and stigmatization of vulnerable patients in circumstances in which their physicians object to the services on religious grounds.  The Policies’ deleterious effects are the burden and anxiety associated with a choice between their deeply-held religious beliefs and complicity in acts which they regard as sinful.  Prior to balancing, the Divisional Court aptly noted three important contextual considerations: the right of patients to equitable access to health care services which engages a s 7 right; the lack of a right for physicians to practice medicine; and Ontario’s single-payer, publicly-funded health care system, which is structured around patient-centered care.

In resolving the balancing exercise, it was appropriate for the College and the Divisional Court to conclude that patients should not bear the burden of managing the consequences of physicians’ religious objections.  The Fact Sheet identifies options that are clearly acceptable to many objecting physicians.  Those who do not find them acceptable may be able to find other practice structures that will insulate them from participation in actions to which they object.  If they cannot do so, they will have to seek out other ways in which to use their skills, training and commitment to patient care.  This result does not underestimate the individual sacrifices required, but the burden of these sacrifices does not outweigh the harm to vulnerable patients that would be caused by any reasonable alternative.  The salutary effects vastly outweigh the deleterious effects.

The appellants have no common law, proprietary or constitutional right to practice medicine.  As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests.  The fiduciary nature of the physician-patient relationship requires physicians to act at all times in their patients’ best interests, and to avoid conflicts between their own interests and their patients’ interests.

The practice of a profession devoted to service of the public necessarily gives rise to moral and ethical choices.  This appeal presents difficult choices for religious objecting physicians, but they do have choices.  While the solution is not perfect for such physicians, it is not a perfect one for their patients either, who will lose the personal support of their physicians at a time when they are most vulnerable.  The Policies do not require the physician to personally provide their patient with all clinically appropriate services or a formal referral, as would be expected in the ordinary course.  The Policies represent a compromise which strikes a reasonable balance between the patients’ interests and physicians’ Charter­-protected religious freedom.  The Policies and Requirements are reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.

Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399

[Benotto J.A. (In Chambers)]

Counsel:

R. Klotz, for the applicant MK

A. Fogul, for the respondent Ralph Culp and Associates Inc., trustee of the estate of MK

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 3.02(1) & 56.01, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 193(e), Bankruptcy and Insolvency General Rules, C.R.C., c. 368, s. 3,  Issai v. Rosenzweig, 2011 ONCA 112, Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500,  Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Facts:

The applicant, who filed for an assignment in bankruptcy for the general benefit of his creditors, moved for security for costs against the respondent Trustee pursuant to rule 56.01(d) of the Rules of Civil Procedure after the Trustee sought re-appointment. The motion judge concluded that Rule 56.01(d) did not apply. Counsel for the applicant indicated that he received instructions to seek leave to appeal the order, and the Trustee consented to an extension of time for the applicant to file his notice of motion for leave to appeal. The applicant did not meet the deadline. The Registrar for the Court of Appeal issued a Notice of Intention to Dismiss for Delay. The applicant once against failed to perfect his motion for leave to appeal and subsequently filed this motion for an extension of time.

Issue:

(1) Should the motion for an extension of time to perfect the motion for leave to appeal be granted?

Holding:

Motion dismissed.

Reasoning:

(1) No. The Court found that the motion for an extension of time should be dismissed. Pursuant to Rule 3.02(1), the Court may extend any time limit prescribed by the Rules of Civil Procedure on such terms as are just. In Issai v. Rosenzweig, the Court set out the relevant factors in determining whether to grant an extension of time to perfect an appeal. This was discussed in the bankruptcy context in Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd.

The Court first found that it was not clear that the applicant maintained an intention to appeal given the lack of steps to perfect the appeal, and there was no reasonable excuse for the delay. Prejudice to the respondent was also established because the results of the motion for security for costs would have no bearing to the merits of the Trustee’s application for re-appointment and would only add costs to the estate which would be borne by the creditors. Finally, the test set out by the Court in Business Development Bank of Canada v. Pine Tree Resorts Inc., for leave to appeal under section 193(e) of the Bankruptcy and Insolvency Act, which applied here, was not satisfied. The issue of whether an order for security for costs should have been granted was not of general importance to the practice of bankruptcy law and would divert proceedings away from the re-appointment of the Trustee, which was the real issue. There was also no prima facie merit to the appeal because the decision of the motion judge was discretionary in nature and entitled to deference. The motion judge’s reliance on rule 56.01 was entirely appropriate given the application of section 3 of the Bankruptcy and Insolvency General Rules. Finally, the justice of the case did not require granting an extension of time.

Whitty v. Wells, 2019 ONCA 397

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

Counsel:

V. Zbogar and R. Di Gregorio, for the appellant

J. Dais-Visca, for the respondents

Keywords: Civil Procedure, Orders, Security for Costs, Extension of Time, Joint and Several Liability, Rules of Civil Procedure, Rule 56.06, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Margaret Grace Kerr v. CIBC World Markets et al., 2013 ONSC 7685

Facts:

The appellant is a plaintiff in two actions.  He is also a director and officer of the corporate plaintiffs in those actions and two related actions.  The appellant and the corporate plaintiffs moved in all four actions for an extension of time to deliver their affidavits of documents and an expert report.  The motion judge granted the extension, but ordered the appellant and the corporate plaintiffs to pay $230,000 in security for costs, on a joint and several basis, in two instalments.  The first instalment was paid, and half of it was personally funded by the appellant.

The security for costs order was in default on September 18, 2018.  The respondents moved to have all four actions dismissed on the basis of the failure to pay the second instalment.  The motion judge refused to dismiss the action of the corporate plaintiffs, and instead granted an extension of time for them to post the second instalment for the security for costs.  However, he granted no such extension to the appellant, and dismissed the appellant’s claims in the two actions in which the appellant was a plaintiff.

The motion judge concluded, in respect of the corporate plaintiffs, that it would be just to give them “one last clear opportunity to determine their own fate”.  Conversely, in the motion judge’s view, the appellant signalled that he was no longer interested in being a personal plaintiff when he declined to post further security despite his joint and several liability.  According to the motion judge, this was consistent with the fact that the appellant had no damages independent of the companies, except, possibly, general damages for defamation, which would be trifling compared to the costs of proceeding.

Issues:

(1) Did the motion judge err in (a) refusing to grant the appellant an extension for time to post the outstanding instalment of security for costs, and (b) dismissing the appellant’s claims in the two actions in which the appellant was a plaintiff?

Holding:

Appeal allowed.

Reasoning:

(1) Yes.  Since the order for security for costs imposed an obligation on the appellant and the corporate plaintiffs that was joint and several, compliance with the order by any party would satisfy it for all.  The motion judge gave insufficient weight to this fact, and erred in principle in reaching his conclusions.  The principles and factors that the motion judge pointed to when he considered the corporate plaintiffs were equally applicable to the appellant, and there was no principled basis upon which his discretion ought to have been exercised in one way for the corporate plaintiffs and in a different direction for the appellant.

The motion judge inferred that the appellant was no longer interested in being a personal plaintiff because he was expressly declining to post further security, and because of the amount of his damages claim compared to the cost of pursuing it. With respect, that factual inference was not available to the motion judge on the record.

The motion judge’s statement concerning the amount of the appellant’s likely damages also could not lead to an inference that he had chosen not to pursue his claim. The appellant was one of the parties opposing the respondents’ request to dismiss the actions, including his personal claims.  He had already funded half of the first instalment of security.  He gave no indication that he was making the choice not to proceed with his actions because of the amount of his likely damages.

Dancy v. Mason, 2019 ONCA 410

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

Counsel:

R. S. Baldwin, for the appellant

M. A. B. Frederick, for the respondent

Keywords: Family Law, Spousal Support, Compensatory Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Divorce Act, RSC 1985, c 3, s 17(4.1), 17(7), Hickey v Hickey, [1999] 2 SCR 518, Moge v Moge, [1992] 3 SCR 813, LMP v LS, 2011 SCC 64, Halliwell v Halliwell, 2017 ONCA 349, Brad-Jay Investments Ltd v Szijjarto (2006), 218 OAC 315 (CA), leave to appeal refused, [2007] SCCA No 92

Facts:

The appellant and the respondent separated in 2005 after 19 years of marriage, preceded by two years of cohabitation.  They had four children together.  The respondent had a law degree when she met the appellant.  She stayed home with the children until the youngest child was eight, at which point she became a teacher.  In 2008, the parties entered into a separation agreement that provided for spousal support.  At that time, the appellant’s income was $330,000 and the respondent’s income was $67,500.  In 2010, they entered into an amending agreement for higher support.  In 2016, the respondent moved for an increase in spousal support.

In 2018, the motion judge increased the spousal support from $9,300 to $12,000 per month.  At that time, the appellant’s income was $632,827.  He ordered this amount retroactive for roughly five years, followed by a gradual step-down over roughly five years.  At the time of this motion, the respondent was a math professor and her income was $104,542 and the appellant was a medical doctor and his income was $646,180.  The respondent re-married a lawyer whose income was $200,000 and the appellant’s new partner had a modest income.  The parties’ children are independent.  The motion judge found that a material change in the circumstances had occurred since the parties amended their separation agreement in 2010 and that the precondition for a variation order had been satisfied.  In addition, he found that here was an original compensatory basis for the respondent’s support.

Issue:

(1) Should the motion judge have terminated or reduced spousal support?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the motion judge made no error in principle and made no palpable and overriding errors in his fact-finding process.  The motion judge made a number of findings: the spousal support was compensatory in nature; the appellant’s medical career progressed as a result of his and the respondent’s contributions; the respondent’s career was interrupted and she was out of the workforce for eleven years; and the respondent chose a career based in part on her childcare responsibilities. He concluded that the respondent remains disadvantaged as a result of assuming the childcare responsibilities and that the appellant achieved a relatively higher standard of living.  The motion judge appropriately considered that while the respondent had achieved a “measure of self-sufficiency”, the level at which she is able to be self-sufficient is lower than the appellant’s.  It was correct to take into account the parties’ original agreement which contemplated an increase in support if the appellant’s income rose and which assessed how to vary the agreement in a change of circumstances.

In light of the foregoing circumstances, the motion judge’s decision to increase support and then gradually step-down support to a termination date which coincided with the appellant’s anticipated retirement was a reasonable exercise of his discretion.  In addition, the motion judge’s order to increase support to $12,000 was within the range of monthly support provided by the Spousal Support Advisory Guidelines (e.g., selecting a payor income of $491,000 would have generated a support range from $9,531 to $12,708).

DeBon v. Hillfield Strathallan College, 2019 ONCA 409

[Sharpe, Pepall and Roberts JJ.A.]

Counsel:

C. A. Haber and C. J. Haber, for the appellant

W. P. Dermody and H. E. Watson, for the respondent

Keywords: Employment Law, Constructive Dismissal, Civil Procedure, Summary Judgment

Facts:

The appellant’s claim for constructive dismissal from her employment as a teacher at a private school was dismissed by way of summary judgment. The appellant alleged that the respondent school altered the terms of her employment contract by failing to protect her from a confrontation with the parents of a student over a mark the appellant had given the student, by undermining her authority by having assignments read and marked by another teacher, and by the principal assigning passing grades to students who had failed to complete all assignments. The appellant appealed the motion judge’s finding that the appellant failed to discharge the evidentiary burden of establishing a genuine issue for trial.

Issues:

(1) Did the motion judge err in dismissing the appellant’s claim via summary judgment?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court was not persuaded that the motion judge erred in law or made a palpable and overriding error of fact in dismissing the appellant’s claim or that there are any issues of credibility requiring a trial. There was no evidence to support the allegation that the school altered the appellant’s terms of employment or failed to follow any policy with respect to the confrontation with the parent. The motion judge’s overall conclusion, that a reasonable person with a dispassionate perspective would not view the teaching environment at HSC to be untenable for the appellant and that the evidence did not establish that the school had made the workplace poisonous for her, was amply supported by the record. The school’s response to the appellant’s complaint regarding the confrontational meeting with the parent was measured and reasonable. There was also no evidence to suggest that having another teacher read and grade assignments was contrary to school policy. The appellant reluctantly agreed to the process and, as the mark assigned by the appellant was confirmed, she was supported rather than being undermined. Finally, there was no evidence to support the contention that the principal altered the terms of the appellant’s employment when he assigned final passing grades to students who had not completed all assignments.

Gopie v. Ramcharran, 2019 ONCA 402

[Hoy A.C.J.O., Watt and Zarnett JJ.A.]

Counsel:

T. J. McCarthy, for the appellants

J. Fitch, for the respondent, Economical Mutual Insurance Company

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Jury Charge, Causation, Damages, Evidence, Admissibility, Character Evidence, Expert Evidence, Hearsay, Medical Records, Costs

Facts:

The appellant was injured in a motor vehicle accident. The driver of the other vehicle was uninsured, so the appellant’s own insurer, the respondent Economical Mutual Insurance Company, defended the action as an uninsured motorist carrier. Liability was not in dispute. The appellant sought in excess of $10 million in damages, arguing that he suffered ongoing symptoms from the mild traumatic brain injury he sustained in the accident. Following an eight-week trial, the jury returned a verdict of about $186,000, including pre-judgment interest – an amount significantly less that the respondent’s pre-trial settlement offer of $500,000, plus costs. The appellant claimed that a new trial was required due errors resulting in the jury’s modest assessment of his damages.

Issues:

(1) Is a new trial required because the jury could not properly assess whether evidence about the appellant’s ongoing symptoms following the accident should be accepted or rejected?

(2) Is a new trial required because the jury was led astray on the proper test for causation and the standard of proof for claims for damages in the future by the trial judge’s charge?

holding:

Appeal dismissed.

REasoning:

(1) No. The Court rejected the appellant’s argument that the jury was allowed to effectively judge the character of the appellant and whether he was a person who was generally untruthful, and, therefore, could not properly assess whether the evidence about his ongoing symptoms following the accident should be accepted or rejected. The appellant said this was the result of the trial judge improperly exercising her gatekeeping function in permitting a defence expert to impugn the appellant’s character and the trial judge having improperly told the jury that they could use the evidence of the appellant’s convictions arising out of events following the accident and other unlawful conduct for the purpose of assessing the appellant’s credibility.

The Court rejected this argument, finding that the appellant had called evidence of both the appellant’s good character traits and bad behaviour. Having introduced evidence of the appellant’s character, the respondent was entitled to challenge it. The respondent put evidence of the appellant’s conduct to the expert as hypotheticals. Although the defence’s expert response, which stated that the appellant might have told stories that were not true, was not proper expert evidence, the trial judge made no reference to this response in her charge to the jury. The Court was not persuaded that the expert’s response or the manner in which the trial judge charged the jury with respect to this expert evidence warranted a new trial. Moreover, the trial judge provided a draft of her charge to counsel for review and comment and the appellant made no objection to this portion of the charge.

(2) No. The appellant argued that the jury was led astray on the proper test for causation and the standard of proof applicable to claims for damages in the future by the trial judge’s charge on what she described as “preliminary questions” that the jury may wish to consider before reviewing the Questions for the Jury. The Court rejected this argument. The trial judge carefully and clearly charged the jury on causation, the standard of proof for causation, and the standard of proof for damages in the future. After this, and before reviewing the Questions for the Jury, she set out some preliminary questions, around which she organized her review of the evidence, to assist the jury in their fact-finding process. The manner in which she formulated those preliminary questions would not have created any confusion about the standard of proof applicable to claims for damages in the future.

The Court also briefly rejected arguments that the appellant did not pursue in oral submissions with respect to the trial judge. First, there was no basis to interfere with the trial judge’s ruling permitting two psychiatrists to testify for the respondent. She considered and fulfilled her gatekeeper function and provided a careful and comprehensive written ruling. Secondly, the trial judge correctly exercised her gatekeeper function with respect to the admission of medical records and reasonably concluded that they were not admissible in the absence of attendance and testimony from the practitioner. Finally, the jury charge was comprehensive, fair, and well-balanced and provided clear and sufficient direction to the jury that they, and not the judge, were fact-finders. The Court concluded by stating there was no basis to interfere with the trial judge’s costs order.

Klassen v. Beausoleil, 2019 ONCA 407

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

Counsel:

R. Kumar, for the appellant

J. S. Winny, for the respondents

Keywords: Corporations, Oppression, Contracts, Share Purchase Agreements, Debtor-Creditor, Civil Procedure, Amending Pleadings, Rules of Civil Procedure, Rule 26.01, Business Corporations Act, R.S.O., c. B.16, s. 248, 158844 Ontario Ltd v. State Farm Fire and Casualty Co., 2017 ONCA 42, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, Davis v. East Side Mario’s Barrie, 2018 ONCA 410, Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3

Facts:

At issue in this appeal was whether or not a motion for leave to amend pleadings should be granted. The appellant was a 33% shareholder of the respondent corporation. He agreed to sell his shares pursuant to a Share Purchase Agreement (the “1996 SPA”) in exchange for: a) the repayment of certain back wages owing; and b) amounts owed pursuant to a promissory note. The 1996 SPA provided that the appellant’s shares would be held in escrow pursuant to an Escrow Agreement (the “1996 Escrow Agreement”) pending repayment of the back wages and the amounts owing under the promissory note. The personal respondent was the ultimate purchaser of the shares sold by the appellant in 1996, having purchased all of the outstanding shares of the company in 1997. The Share Purchase Agreement entered into at that time (the “1997 SPA”) provided that the personal respondent, in purchasing the shares, also assumed responsibility for payment of the back wages and amounts owing on the promissory note. The appellant’s shares would continue to be held in escrow pending satisfaction of the escrow release conditions. To this end, the appellant and the personal respondent executed an Amended Escrow Agreement (the “1997 Escrow Agreement”), which, in effect, continued the terms of the 1996 Escrow Agreement.

The heart of the appellant’s claim was that, shortly after the personal respondent purchased the shares in the corporation in 1997, they entered into an oral agreement under which the appellant and the personal respondent would each become 50% co-equal shareholders in the corporation. The appellant also alleged that, for various reasons, the personal respondent and the corporation did not pay the back wages owing or the amounts owed under the promissory note. The dispute allegedly came to a head when the personal respondent denied that the appellant was a shareholder of the corporation. The appellant commenced an action against the corporation and the personal respondent, as the ultimate purchaser of his shares, for breach of contract, breach of trust, unjust enrichment and seeking relief under s. 248 of the Business Corporations Act for the respondents’ allegedly oppressive conduct.

The respondents brought a motion for summary judgment, seeking the dismissal of the appellant’s action in its entirety or, in the alternative, dismissing the appellant’s claim to a 50% ownership interest, claim for amounts owing on the promissory note, and claim for back wages. The motion judge granted summary judgment to the respondents on the promissory note, based on the respondents’ payment of the amount owing. He determined that the appellant did not have any further claim for interest owing on the promissory note. The motion judge also dismissed the appellant’s claims in relation to certain other debts. However, the motion judge declined to grant summary judgment with respect to the appellant’s claims relating to the back wages and oral agreement for a 50% ownership interest in the corporation because it was necessary for those claims to proceed to trial. In the course of the summary judgment motion, counsel for the appellant argued that the appellant remained a 33% shareholder by virtue of the respondents’ failure to satisfy the escrow conditions. Counsel for the respondents objected on the basis that this theory was not pleaded in the appellant’s Statement of Claim. The motion judge did not deal with this issue in his endorsement.

The appellant’s shares remained in escrow. After a request by the appellant’s counsel for the return of the appellant’s shares, the escrow agent refused to release the shares in light of the ongoing litigation between the parties. The appellant brought a motion (now the subject of this appeal) pursuant to Rule 26.01 of the Rules of Civil Procedure for leave to amend his Statement of Claim. In particular, the appellant sought to amend his Statement of Claim to plead, in the alternative to his request for a declaration of a 50% ownership interest in the corporation, a request for a declaration that he had a 33% ownership interest in the corporation. This requested alternative relief was premised on the theory that the escrow release conditions in the 1996 Escrow Agreement and 1997 Escrow Agreement remained unsatisfied, and the appellant’s shares remained in escrow.

The motion judge granted leave to the appellant to make most of the amendments sought, but refused to grant leave for the appellant to assert the alternative claim for a 33% ownership interest in the corporation. The appellant appealed this refusal.

Issues:

(1) Were the proposed amendments to assert a claim to a 33% ownership interest the assertion of a “new cause of action”?

(2) If the proposed amendments are an assertion of a new cause of action, were the amendments statute-barred?

(3) Was this a case where non-compensable prejudice would arise as a consequence of the amendments?

Holding:

Appeal allowed.

Reasoning:

(1) No. After proceeding with a brief summary of the applicable principles to motions for leave to amend under Rule 26.01, the Court found that the motion judge erred in principle in his approach to the motion for leave to amend. The proposed amendments did not assert a new cause of action. In suggesting that the 1996 SPA, 1996 Escrow Agreement and 1997 SPA were pleaded solely as “background” to the 50% ownership interest claim, the motion judge failed to appreciate that the appellant had explicitly asserted claims for breach of contract and breach of trust in relation to those agreements. Reading the appellant’s Statement of Claim generously, the proposed amendments did not amount to the assertion of a new cause of action; rather, the alternative claim to a 33% ownership interest was an alternative claim for relief, or an alternative legal conclusion, flowing from the material facts as originally pleaded.

Reading the Statement of Claim generously and as a whole, the essential factual matrix giving rise to the appellant’s action was his decision to sell his shares in 1996, the respondents’ failure to pay him for his shares, and the oral agreements allegedly made between the parties, including the oral agreement that he would become a 50% shareholder. As pleaded, these issues were all interwoven. While the allegation that the appellant was a 50% shareholder of the corporation was the predominant focus of the litigation to date, it was not the exclusive claim set out in the original Statement of Claim. The appellant also expressly pleaded claims for breach of contract relating to the 1996 SPA, the 1996 Escrow Agreement and 1997 SPA, in addition to the purported breach of the oral agreement. Thus, the various written agreements referred to in the Statement of Claim not only provided the necessary material facts and background relating to the alleged breach of the oral agreement, but also the material facts necessary to ground a claim for breach of the written agreements themselves. In light of the material facts expressly set out in the Statement of Claim, the appellant’s requested amendments did not assert a new cause of action, but rather requested alternative relief flowing from the respondents’ alleged breach of the 1996 SPA, 1996 Escrow Agreement and 1997 SPA.

The proposed amendments also did not seek to introduce any new material facts. Rather, the amendments were meant to introduce, wherever a pleading of a 50% ownership interest was particularized, language to the effect of “or in the alternative a 33% ownership interest”. In effect, the appellant was seeking the return of his shares held in escrow and a declaration that he remained a 33% shareholder as a consequence of the respondents’ breach of the 1996 SPA, 1996 Escrow Agreement and 1997 SPA, rather than an award of damages. This was a quintessential example of a request for additional forms of relief, or a clarification of the relief sought, based on the same facts as originally pleaded. The Court also agreed with the appellant’s submission that it was inconsistent for the motion judge to have granted leave to allow the appellant to plead an entitlement to the return of the shares in escrow, while denying the amendment to plead that he remains a 33% shareholder. These pleadings were fundamentally interrelated.

(2) No. The Court rejected the respondent’s argument that the underlying claim for the return of the shares in escrow or claim to a 33% ownership interest, however framed, was incurably time-barred. The respondents, in effect, argued that that the failure to make payment on the promissory note and back wages in 1997 triggered the start of the applicable limitation period. The Court found that it was unnecessary to address the parties’ various limitation arguments arising from the original pleadings at this stage. This was because it was only necessary to determine whether a limitation period had expired in respect of the proposed amendments if the amendments asserted a new cause of action. As noted above, the Court concluded that the proposed amendments did not do so.

(3) No. The delay in seeking leave to amend, in the circumstances, did not raise a presumption of prejudice, and the respondents had not established they would have otherwise suffered actual, non-compensable prejudice as a result of the amendments. The Court rejected the respondent’s argument that the appellant’s delay in seeking the amendment raised a presumption of non-compensable prejudice. The respondents focused on the fact that 22 years had elapsed between the events giving rise to the 33% ownership claim and the appellant seeking leave to amend his Statement of Claim. The Court stated that the focus was properly on the period of delay between commencing the proceedings and seeking leave to amend, not the period between the underlying events in question and seeking leave to amend. The delay of approximately 2 years and 7 months between commencing the action and formally seeking leave to amend was short, and the appellant moved fairly promptly to amend his Statement of Claim following the summary judgment motion when the respondents’ counsel objected with respect to whether the 33% ownership claim was sufficiently pleaded. Most significantly, the amendment claimed alternative relief based on the same material facts as were originally pleaded. It was integrally related to the existing claim, and the Court stated that the circumstances could not give rise to any presumed prejudice.

The Court then rejected the respondents’ argument that the amendments would cause them actual, non-compensable prejudice. The Court rejected the respondents’ argument that the fact that the corporation had made a payment to the respondents on the promissory note in 2016 would result in prejudice because the appellant might take the position that the payment, despite being stated to be “without prejudice”, was an acknowledgment of the debt that restarted the limitation period to reclaim the escrowed shares. The Court stated that this was a strategic choice and the respondent could not now point to that payment as establishing actual prejudice. Secondly, the Court did not agree that the amendments would cause the respondents to suffer prejudice as a consequence of a material witness’s death. The witness was not a party to the various agreements, nor privy to the negotiations leading up to the execution of those agreements.

The Court then rejected the respondents’ argument that relevant evidence from the corporation’s business records and corporate files had been lost due to its practice of only retaining records for seven years. The alleged prejudice resulting from the destruction or loss of the business records did not arise as a consequence of the amendments. The alleged prejudice did not flow from the amendments; rather, it flowed from the historic nature of the allegations as originally particularized in the Statement of Claim. The evidence was that corporate records were destroyed in the ordinary course before the commencement of the action. Finally, any prejudice resulting from the fact that the appellant had already been examined for discovery could be cured by allowing for additional examinations.


SHORT CIVIL DECISIONS

Devathasan v. Ablacksingh, 2019 ONCA 386

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

Counsel:

N. Groot and A. Ferguson, for the appellant

No one appearing, for the respondent

Keywords: Appeals, Hearing Together, Adjournments

Fulton v. Koa Aloha Inc., 2019 ONCA 408

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

C. Staples, for the appellant

E. Treslan, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Options, Statute of Frauds, R.S.O. 1990, c. S.19

Travelbrands Inc. v. Bramalea Travel Centre Inc., 2019 ONCA 404

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

E. Upenieks and Angela Kwok, for the appellant

D. Bourassa, for the respondent

Keywords: Contracts, Privity, Agency, Summary Judgment


CRIMINAL DECISIONS

R. v. Koningen, 2019 ONCA 391

[Feldman, Miller and Fairburn JJ.A.]

Counsel:

T. Hughes, for the appellant

S. Horgan, for the respondent

Keywords: Criminal Law, Fraud, Criminal Code, s. 380(1)(a), Evidence, Credibility, R. v. Morrissey, (1995) 22 O.R. (3d) 514 (C.A.)

R. v. Praljak, 2019 ONCA 394

[MacPherson, Juriansz and Rouleau JJ.A.]

Counsel:

M. Praljak, in person

M. Dineen and Svibor Gamulin, amicus curiae

J. Patton, for the respondent

Keywords: Criminal Law, Second Degree Murder, Evidence, R v. Walle, 2012 SCC 41

R. v. Carson, 2019 ONCA 396

[Watt, Pardu and Nordheimer JJ.A.]

Counsel:

M. Welch, for the appellant

B. Carson, acting in person

E. Dann, appearing as amicus curiae

Keywords: Provincial Offences, Lobbying, Lobbying Act, ss 7 and 10.11(1)

R. v. Clarke, 2019 ONCA 403

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

Counsel:

P. Valli, for the appellant

E. N. Rivers, for the respondent

Keywords: Criminal Law, Possession of a Firearm Obtained by Crime, Possession of Property Obtained by Crime, Break and Enter with Intent to Commit an Indictable Offence

R. v. Charlton, 2019 ONCA 400

[Doherty, Hourigan and Harvison Young JJ.A.]

Counsel:

M. Salih, for the appellant

J. S. Tse, for the respondent

Keywords: Criminal Law, Attempted Murder, Discharging Firearm with Attempt to Injure, Procedural and Natural Justice, Duty to Provide Reasons, Canada Evidence Act, R.S.C. 1985, c. C-5, R. v. Headley, 2018 ONCA 915, 368 C.C.C. (3d) 308, R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, leave to appeal dismissed [2017] S.C.C.A. No. 225

R. v. Dhaliwal, 2019 ONCA 398

[MacPherson, Juriansz and Rouleau JJ.A.]

Counsel:

J. Dhaliwal, in person

B. Snell, duty counsel

J. Smith Joy, for the respondent

Keywords: Criminal Law, Endorsement, Sentencing, R. v. Danvers, (2005), 199 C.C.C. (3rd) 490 (Ont. C.A.)

R. v. Gerson-Foster, 2019 ONCA 405

[Feldman, Paciocco and Zarnett JJ.A]

Counsel:

A. Stastny and A. Little, for the appellant

R. Morin and E. Carley, for the respondent

Keywords: Criminal Law, Possession of Cocaine for the Purposes of Trafficking, Possession of Proceeds of Indictable Offence, Unreasonable Search and Seizure, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Criminal Code, R.S.C. 1985, c. C-46, s. 354(1), Canadian Charter of Rights and Freedoms, ss. 8 & 9

R. v. Kwok, 2019 ONCA 406

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

T. Hashmani and D. Michael, for the appellant

V. Goela, for the respondent

Keywords: Criminal Law, Endorsement, Possession of Narcotics, Canadian Charter of Rights and Freedoms, s. 24(2)

R. v. Zirkind, 2019 ONCA 401

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

Counsel:

E. Prutschi, for the appellant

J. Conroy and K. Benzakein, for the respondent

Keywords: Criminal Law, Trafficking in Property Obtained By Crime, Possession of Property Obtained by Crime, Sentencing, R v W.(D.), [1991] 1 S.C.R. 742

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.