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Good afternoon.

It was a light, yet eventful week at the Court of Appeal for Ontario.

Smith v Ontario (Attorney General) marked the second time in the last four months that the Court has addressed the issue of prosecutorial immunity, having already done so in the April 2019 decision in Clark v. Ontario (Attorney General).

Smith involved a crossclaim for contribution and indemnity by the police against the Crown attorneys for allegedly negligent legal advice provided to the police during the pre-charge stage of a failed prosecution. Following the dismissal of the charges, the police and Crown were sued for wrongful arrest. Clark had involved a claim by the police against the Crown for misfeasance in public office for not pursuing certain charges laid by the police that led to a claim against them by the accused.

The Court in Smith stopped the crossclaim in its tracks, finding that prosecutorial immunity protected the Crown. Moreover, after undergoing an Anns/Cooper analysis, the Court concluded that, for policy reasons, it should not recognize a duty of care owed by Crown prosecutors to the police in providing legal advice. The Court discussed the chilling effect potential liability of the Crown to the police may have on the proper functioning of the criminal justice system.

One has to wonder what has been going on lately between two of the three pillars of our criminal justice system (the other, of course, being the judiciary). It would seem to me that public finger pointing like this between the police and the Crown does nothing for the repute of our criminal justice system. Moreover, these claims seem to be a waste of public funds (although I recognize that one purse may be municipal, the other provincial). Hopefully, the two branches will work together moving forward to eliminate these kinds of claims, similar to what LawPro does by prohibiting lawyers who are involved in litigation from pointing the finger at each other.

In Alford v Canada (Attorney General), the Court held that Lakehead University law professor, Dr. Ryan Alford, has standing to challenge the constitutionality of section 12 of the National Security and Intelligence Committee of Parliamentarians Act. According to his bio on Lakehead’s website, Dr. Alford’s area of research focuses on the rule of law and legal rights during public emergencies. The Act in question establishes the National Security and Intelligence Committee of Parliamentarians, which is to be made up of MPs and Senators, not including members of Cabinet. Under sections 11 and 12 of the Act, members of the Committee must obtain security clearance and take an oath or affirm to keep state secrets secret. Section 12 removes the defence of immunity based on parliamentary privilege in any prosecution of a member or former member of the Committee for improperly disclosing classified information. Dr. Alford maintains that section 12 is unconstitutional because it purports to take away immunity arising from parliamentary privilege, which he maintains is a constitutionally protected privilege. The Court’s ruling means that Dr. Alford can proceed with his constitutional challenge.

In Cassandro v Glass, a case involving the breach of a commercial tenancy agreement, the Court reminded litigants once again that it is inappropriate to raise a new defence on appeal that was neither raised in the pleadings nor argued at trial.

Finally, in an unfortunate turn of events in Hilson v. 1336365 Alberta Ltd., the Court revealed that its decision in that case released on May 27, 2019, was released in error. Apparently, one of the judges who sat on the panel inadvertently did not participate in the preparation of the Court’s reasons for decision, and those reasons were erroneously signed by another judge who had not sat on the panel. The Court had no choice but to order a re-hearing of the appeal on an expedited basis before a new panel. I am sure that the judges and staff involved feel terribly that this could have ever happened, and I understand that the Court has already instituted several procedures to ensure that something like this does not happen again. No one is perfect, not even our venerable Court!

The Canadian National Exhibition opened today, marking the unofficial beginning of the end of the summer. Enjoy what is left of it!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Smith v Ontario (Attorney General), 2019 ONCA 651

Keywords: Torts, Solicitor’s Negligence, Duty of Care, Anns/Cooper Test, Criminal Law, Crown Attorneys, Prosecutorial Immunity, Duty of Care, Police Independence, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), R v Imperial Tobacco, 2011 SCC 42, Clark v. Ontario (Attorney General), 2019 ONCA 311

Alford v Canada (Attorney General), 2019 ONCA 657

Keywords: Constitutional Law, Parliamentary Privilege, Civil Procedure, Standing, Public Interest Standing, National Security and Intelligence Committee of Parliamentarians Act, SC 2017, c 15, s12, Downtown East Side Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45

Cassandro v Glass, 2019 ONCA 654

Keywords: Contracts, Real Property, Commercial Leases, Remedies, Distraint, Distress Damage Feasant, Mitigation, Stewart v Gustafson, [1999] 4 WWR 695 (Sask QB), Forhan & Read Estates Ltd v. Hallett and Vancouver Auto Towing Service (1959), 19 DLR (2d) 756 (BC Co Ct), R v Howson, [1966] 2 OR 63, Barbour v University of British Columbia, 2009 BCSC 425, Davy Estate v CIBC World Markets Inc, 2009 ONCA 763, deposit, Benedetto v 2453912 Ontario Inc., 2019 ONCA 149

Short Civil Decisions

Hilson v 1336365, 2019 ONCA 653

Keywords: Civil Procedure, Appeals, Judgments, Court Error

Hunt v Peel Mutual Insurance Company, 2019 ONCA 656

Keywords: Torts, Negligence, Occupier’s Liability, Statutory Interpretation, Insurance Act, RSO 1990, c 18, s239(1)

Smith v Smith, 2019 ONCA 655

Keywords: Family Law, Civil Procedure, Appeals, Extension of Time

Criminal Decisions

R v Boone, 2019 ONCA 652

Keywords: Criminal Law, Attempted Murder, Aggravated Sexual Assault, Administering a Noxious Thing, Jury Instructions, New Trial, Criminal Code, ss14, 241.2, s 229(a)(i), s245(1)(a), R v Mabior, 2012 SCC 47, [2012] 2 SCR 584, The Queen v Ancio, [1984] 1 SCR 225, R v Buzzanga and Durocher (1979), 49 CCC (2d) 369 (Ont CA), R v Keegstra, [1990] 3 SCR 697, R v Chartrand, [1994] 2 S.C.R. 864, R v Boone, 2011 ONSC 5889, R v Boone, 2012 ONCA 539, R v Kienapple, [1975] 1 SCR 729, R v Williams, 2003 SCC 41


CIVIL DECISIONS

Smith v Ontario (Attorney General), 2019 ONCA 651

[Simmons, Tulloch, and Brown JJA]

Counsel:

C. K. Boggs and S. Zacharias, for the appellants The Durham Regional Police Services Board, L.L., J.J.A., C.B., D.A.D., J.B., J.K., D.K. and D.J.

K. McGivney and J. Hunter, for the appellants The York Regional Police Services Board and YRP #1

S. Mathai and H. Burnett, for the respondents The Attorney General of Ontario, M.H. and J.S.

Keywords: Torts, Solicitor’s Negligence, Duty of Care, Anns/Cooper Test, Criminal Law, Crown Attorneys, Prosecutorial Immunity, Duty of Care, Police Independence, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), R v Imperial Tobacco, 2011 SCC 42, Clark v. Ontario (Attorney General), 2019 ONCA 311

FACTS:

The issues on appeal arise from a “Mr. Big” operation that led to the plaintiff being charged with first degree murder and incarcerated for nearly five years following his arrest. The plaintiff was acquitted following the exclusion of the alleged confessions during the Mr. Big Operation. After his acquittal, the plaintiff sued the police and Crown Attorneys involved in the investigation for negligent investigation, unlawful arrest and imprisonment, and intentional infliction of mental suffering. The police crossclaimed against the Crown Attorneys for indemnity and contribution for both negligent legal advice and breach of retainer during the pre-charge stage of the prosecution.

The respondents moved to strike out both the plaintiff’s claims against them and the Durham appellants’ crossclaim. The motion judge granted the motion to strike out the plaintiff’s claims against the respondents on the basis that it was barred by common law prosecutorial immunity. Significantly, the motion judge dismissed the argument that prosecutorial immunity only applies to the post-charge stage or to matters within core prosecutorial discretion. The motion judge also struck the Durham appellants’ crossclaim for contribution. However, the crossclaim for indemnity was allowed to proceed on the basis that it was not plain and obvious that the respondents did not owe the appellants a duty of care when providing legal advice. The crossclaim for breach of retainer was struck on the basis that the pleadings lacked the necessary elements of the breach of retainer cause of action, but the motion judge gave the Durham appellants leave to amend.

The Divisional Court allowed the respondents’ appeal and struck the crossclaim in its entirety. The court held that it was plain and obvious that prosecutorial immunity would bar the crossclaim and noted that there was no appellate case that supported holding Crown Attorneys liable for negligent legal advice to police in the course of an investigation. Notably, the Court released its decision in Clark v. Ontario (Attorney General), 2019 ONCA 311 (“Clark”) nearly two months after the hearing of this appeal. In Clark, three police officers sued the Attorney General of Ontario for negligence and misfeasance in public office. The Court dismissed the officers’ appeal on the basis that prosecutorial immunity barred their negligence claim. However, the officers’ claim for misfeasance in public office was allowed to proceed. While Clark concerned Crown Attorney conduct after the laying of charges, the Court in this case was guided by that decision because the same concerns apply to Crown Attorney involvement at the pre-charge stage.

ISSUES:

(1) Is this a proper case for a motion to strike?

(2) Does prosecutorial immunity bar the crossclaim?

(3) Do Crown Attorneys owe a duty of care to police in respect of the legal advice they provide?

HOLDING:

Appeal dismissed.

REASONING:

(1) Yes. Pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, a party may move to strike a claim that discloses no reasonable cause of action. The Court noted that while a claim will not be struck simply because it is novel, if it is plain and obvious that the pleading discloses no reasonable cause of action, it cannot proceed. In rejecting the appellants’ argument that it is inappropriate to resolve the prosecutorial immunity issue on a Rule 21 motion, the Court cited its decision in Clark v. Ontario (Attorney General), 2019 ONCA 311 (“Clark”), as well as two decisions of the Supreme Court of Canada where policy rationales underlying prosecutorial immunity were considered on a motion to strike. The Court also rejected the appellants’ argument that there was insufficient evidence to resolve the duty of care issue on the Rule 21 motion. This conclusion was based on the fact that the separate and distinct roles of police and Crown Attorneys and the principle of police independence during the investigation and charge-laying stages are matters of settled law.

(2) Yes. After an in-depth review of public law principles articulated by the Supreme Court of Canada on Crown independence and prosecutorial discretion, the Court found it plain and obvious that prosecutorial immunity applies to police litigation against Crown Attorneys for negligent advice. This conclusion was based on twin policy concerns. First, police litigation against Crown Attorneys for negligent advice has the potential to divert Crown Attorneys from their duties and undermine the proper functioning of the justice system. Second, police litigation against Crown Attorneys for negligent advice engages the chilling effect leading to defensive lawyering. In this regard, the Court found that imposing liability for mere negligence would risk leading Crown Attorneys whose advice is sought by police at the investigation stage to allow their actions to be guided more by a desire to avoid liability than by an objective assessment of the facts and law.

The Court also noted that the chilling effect policy concern includes the damage that imposing liability would cause to the relationship between Crown Attorneys and the police. Specifically, fear of civil liability for negligent legal advice could cause Crown Attorneys to be reluctant to give advice and also cause Crown Attorneys to veer into impermissible direction of the police. The damage that imposing liability would cause to the relationship was evidenced in the Durham appellant’s amended statement of defence and crossclaim argument that but for receiving legal advice and direction, they would not have proceeded with the investigation in the manner that was undertaken or charged the Plaintiff with murder. The Court found that such a theory runs completely contrary to the nature of the relationship between police and Crown Attorneys and to the principle that Crown Attorneys do not exercise supervisory authority over the police.

(3) No. Following the two-stage Anns/Cooper test, which was articulated by the Supreme Court of Canada in R v Imperial Tobacco, 2011 SCC 42, the Court concluded that it is plain and obvious that Crown Attorneys do not owe a duty of care to the police in respect of the legal advice they provide. Since the appellants argued for the recognition of a new category of relationship giving rise to liability, the Court conducted a full proximity analysis under stage one of the test, examining relevant factors arising from the relationship between the parties such as the parties’ expectations and reliance. The analysis led the Court to conclude that there is not a sufficiently direct and close relationship to impose a prima facie duty of care on Crown Attorneys in providing legal advice to police.

Despite their finding under stage one, the Court conducted an analysis of the residual policy considerations that would negate such a duty under stage two of the test. The Court found that the same two policy concerns that compel the application of prosecutorial immunity to these circumstances also operate to negate any recognition of a prima facie duty of care. The Court also noted a third residual policy concern is that imposing a duty of care on Crown Attorneys would undermine the mutual independence and distinct roles of police and Crown Attorneys, which in turn could harm the functioning of the criminal justice system.

Alford v Canada (Attorney General), 2019 ONCA 657

[Paciocco, Harvison Young, and Zarnett JJA)

COUNSEL:

R. Alford, in person

A. Gay, for the respondent

Keywords: Constitutional Law, Parliamentary Privilege, Civil Procedure, Standing, Public Interest Standing, National Security and Intelligence Committee of Parliamentarians Act, SC 2017, c 15, s12, Downtown East Side Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45

FACTS:

Dr. Alford, a law professor with expertise in constitutional law and national security, initiated a challenge to section 12 of the National Security and Intelligence Committee of Parliamentarians Act, alleging that it contravenes the inherent constitutionally protected right of Parliamentary Privilege. Section 12 prevents Parliamentary Privilege from being invoked if a member of the National Security and Intelligence Committee of Parliamentarians is prosecuted for disclosing protected information.

The application judge denied Dr. Alford public interest standing and did not decide the application on its merits.

ISSUE:

(1) Did the application judge err in denying the appellant public interest standing?

Holding:

Appeal allowed.

REASONING:

Yes. The Court found that Dr. Alford met the test for having public interest standing as set out in Downtown Eastside Sex Workers United Against Violence Society v. Canada (Attorney General) 2012 SCC 45:

  1. Dr. Alford raised a serious justiciable issue;
  2. The applicant demonstrated a genuine interest in this issue, having published on the topic and having participated in committee hearings relating to the legislation; and
  3. The challenge he wishes to bring is a reasonable and effective way to bring the matter before the court. He is highly competent and able to represent the constitutional issues at stake, and clearly motivated to do so. He sees this challenge as an issue of public importance impacting on fundamental principles of democracy.

The Court did not consider it appropriate to deal with the merits of the case, which was remanded to the Superior Court.

Cassandro v Glass, 2019 ONCA 654

[MacPherson, Tulloch, and Harvison Young JJA]

Counsel:

P. Pape and C. Senese, for the appellant

T. Falldien, for the respondents

Keywords: Contracts, Real Property, Commercial Leases, Remedies, Distraint, Distress Damage Feasant, Mitigation, Stewart v Gustafson, [1999] 4 WWR 695 (Sask QB), Forhan & Read Estates Ltd v. Hallett and Vancouver Auto Towing Service (1959), 19 DLR (2d) 756 (BC Co Ct), R v Howson, [1966] 2 OR 63, Barbour v University of British Columbia, 2009 BCSC 425, Davy Estate v CIBC World Markets Inc, 2009 ONCA 763, deposit, Benedetto v 2453912 Ontario Inc., 2019 ONCA 149

FACTS:

G entered into an oral lease agreement with C to rent C’s property. The property had to be rezoned and G undertook to do so with the assistance of C. G agreed to pay the fees and costs associated with the rezoning process. During the rezoning process, G began to modify the property to make it suitable for his business. In doing so, he illegally dumped landfill on the property. C was ordered to remove the excess fill and to remediate the environmental damage the fill was causing.

The property was ultimately rezoned but the Ontario Municipal Board required C to enter into a Site Plan Control Agreement (“Site Plan Agreement”) which C and the City entered into. The Site Plan Agreement, which was registered on title, incorporated the terms of the environmental remediation. It also required C to pay $25,339.30 to the City for rezoning fees and deposits. Despite agreeing to do so, G did not complete the required remediation and refused responsibility to rectify the excessive landfill. This led to a breakdown of the landlord-tenant relationship and C served a notice of eviction in November 2013. In mid-January 2014, C denied G access to the leased premises and his chattels. C also served G an additional notice giving G nine days to remove all remaining property from the premises. The notice also stated that G could not enter the leased premises until he first paid C $3,100. G never removed the property so C terminated the lease, took possession of the leased premises, and distrained G’s chattels as security for damages that would be assessed at a future date.

ISSUES ON APPEAL:

(1) Did the trial judge err by failing to find that C lawfully distrained G’s chattels pursuant to the common law remedy of distress damage feasant?

(2) Did the trail judge make a palpable and overriding error in determining that G had lost income as a result of the distraint?

(3) Did the trial judge err by awarding damages for the value of G’s chattels and for loss of income in light of the trial judge’s finding that G failed to mitigate his damages?

ISSUES ON CROSS-APPEAL:

(1) Did the trial judge err by ordering G to pay damages of $92,660 to finish the zoning upgrade to C’s property?

(2) Did the trial judge err in failing to give G credit for the $25,339.30 he paid to the City pursuant to the Site Plan Agreement?

(3) Did the trial judge overcompensate C for the $3,090 in rent arrears by double-counting this figure?

HOLDING:

Appeal allowed in part.

Cross-appeal allowed in part.

REASONING:

Appeal

(1) No. The defence of distress damage feasant is an ancient common law right that permits an occupant of land to distrain a chattel found on that land in certain circumstances. The chattel the occupant of the land has seized must have trespassed or have been unlawfully present on the occupant’s land (Stewart v Gustafson, [1999] 4 WWR 695 (Sask QB); Forhan & Read Estates Ltd v. Hallett and Vancouver Auto Towing Service (1959), 19 DLR (2d) 756 (BC Co Ct)). The chattel must also have caused actual damage to the occupant’s land and must be continuing to cause such damage at the time of its seizure (R v Howson, [1966] 2 OR 63; Barbour v University of British Columbia, 2009 BCSC 425). C failed to plead distress damage feasant and argue it at trial. Moreover, the doctrine does not assist him because at the time of the initial damage, the chattels were lawfully on the leased premises.

(2) Yes. The trial judge failed to explain how he concluded that G suffered a loss of income nor how he arrived at the $100,000 figure. G bore the onus of proving his claimed loss and the quantum of damages but failed to do so. The trial judge failed to resolve the conflicting evidence and thus committed a palpable and overriding error. A new trial was therefore ordered.

(3) No. The trial judge failed to explain how his finding on mitigation affected his ultimate damages award, however that did not disentitle G to damages. G promptly made a counterclaim for conversion when C commenced this action and thus did pursue a legal step to recover his property. The defence of mitigation only arises after the plaintiff has suffered the loss and it concerns conduct unrelated to the initial loss (Davy Estate v CIBC World Markets Inc, 2009 ONCA 763). The defendant cannot thus invoke mitigation in relation to the Plaintiff’s pre-loss conduct or failure to avoid loss prior to its occurrence. The trial judge committed a palpable and overriding error in finding that G failed to mitigate because he did not give any effect to the fact that C had started an action against G.

Cross-appeal

(1) No. The trial judge found that C and G made an oral agreement in which G was to assume the costs of the rezoning application. Termination of the lease by C did not also terminate this oral agreement because the oral agreement was separate from the lease agreement. G failed to meet his onus to show that C could have reasonably avoided his losses by resubmitting a rezoning application. The evidence of the City engineer indicated that rezoning the property back to rural would be complex, would require modifications to the property, and may involve demolition of structures. The duty to mitigate does not require C to embark on a risky or speculative venture for the benefit of G (Davy Estate, supra).

(2) No. The City confirmed that of the $25,339.30 paid by G under the Site Plan Agreement, only $13,500 is characterized as a refundable deposit. A deposit, however, is not part of the contract to which it is attached but instead stands on its own as an ancient invention of the law designed to motivate contracting parties to carry through with their bargains (Benedetto v 2453912 Ontario Inc, 2019 ONCA 149). If the contract is not performed, the payee is not obligated to return the deposit. G was responsible for completing the Site Plan Agreement, failed to do so, and as a result, is not entitled to get his deposit back. This does not result in a windfall for C because C’s claim is grounded in contract and the aim of contract damages is to place C in the same position he would have been in if G had performed the oral agreement. Had the oral agreement been performed, C would no longer have to pay the costs of completing the Site Plan Agreement.

(3) Yes. The trial judge misunderstood the law of distraint and the principle that a party can either take distress or terminate the lease, but not both. While the trial judge found that C had terminated the lease as of January 31, 2014, he also found that C was entitled to take distraint for the $3,090 of rent. The distraint was wholly unlawful; it is settled law that distraint is unlawful when the landlord terminates the lease at the same time the landlord attempts to take distress. C is not entitled to credit the $3,090 of rent arrears against the chattels seized.


SHORT CIVIL DECISIONS

Hilson v 1336365 Alberta Ltd., 2019 ONCA 653

[Hoy ACJO, Feldman, and Huscroft JJA]

Counsel:

J. Rosenstein, for the appellants/respondents by way of cross-appeal

H.W. Reininger, for the respondents/appellants by way of cross-appeal

Keywords: Civil Procedure, Appeals, Judgments, Court Error

Hunt v Peel Mutual Insurance Company, 2019 ONCA 656

[Paciocco, Harvison Young, and Zarnett JJA]

Counsel:

R. Campbell, for the appellant

M.E. Key, for the respondent

Keywords: Torts, Negligence, Occupier’s Liability, Statutory Interpretation, Insurance Act, RSO 1990, c 18, s239(1)

Smith v Smith, 2019 ONCA 655

[Pardu, Paciocco and Zarnett JJA]

Counsel:

M.S., in person

No one appearing for the respondent

Keywords: Family Law, Civil Procedure, Appeals, Extension of Time


CRIMINAL DECISIONS

R v Boone, 2019 ONCA 652

[Doherty, Miller, and Fairburn JJA]

Counsel:

J. Shime and B ElzingaCheng, for the appellant

K. Janmohamed and R. Peck, for the intervenors

Keywords: Criminal Law, Attempted Murder, Aggravated Sexual Assault, Administering a Noxious Thing, Jury Instructions, New Trial, Criminal Code, ss14, 241.2, s 229(a)(i), s245(1)(a), R v Mabior, 2012 SCC 47, [2012] 2 SCR 584, The Queen v Ancio, [1984] 1 SCR 225, R v Buzzanga and Durocher (1979), 49 CCC (2d) 369 (Ont CA), R v Keegstra, [1990] 3 SCR 697, R v Chartrand, [1994] 2 S.C.R. 864, R v Boone, 2011 ONSC 5889, R v Boone, 2012 ONCA 539, R v Kienapple, [1975] 1 SCR 729, R v Williams, 2003 SCC 41


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…

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.