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Good evening,

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

The headline decision this week is Toronto (City) v Ontario (Attorney General). Everyone will recall that the Better Local Government Act, 2018, passed shortly before the 2018 municipal election, reduced the number of wards from 47 to 25 in the middle of the election campaign. The City and others challenged the constitutionality of the change. After Belobaba J. declared the change unconstitutional for violating the freedom of expression, last year a three-member panel of the Court of Appeal stayed the lower court decision pending the appeal, permitting the election to proceed on the basis of 25 wards. On the appeal itself, four of the five members of the panel of the Court noted that the section 2(b) protection of expression does not extend to the effectiveness of the expression. The majority therefore concluded that the change mid-election was not unconstitutional. The majority also found that the application judge had improperly subsumed the right to vote into the right to freedom of expression. MacPherson JA dissented, and would have dismissed the appeal, finding that the freedom of expression had been violated.

Our readers will recall that Hilson v 1336365 Alberta Ltd was a decision that was released by the Court in error back in May. Last month, the Court determined that the appeal had to re-heard by a new panel (it is scheduled to be heard at the end of October). The respondent brought a motion for security for costs in advance of the re-hearing. It had not sought security for costs the first time around. In light of the delay, and the circumstances necessitating the re-hearing of the appeal, the Court quite rightly determined that an order for security for costs at this stage would not be just.

Other topics covered this week included contractual interpretation, variation of both a child support and security for costs order, custody and access, extension of time to perfect an appeal and setting aside an order for security for costs in a negligence action against a bank, the determination of rights under a bare trust and MVA.

I hope everyone is enjoying the beautiful end of summer weekend weather.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

AgriMarine Holdings Inc. v. Akvatech AS,2019 ONCA 713

Keywords: Contracts, Interpretation, Breach, Licensing Agreements, Standard of Review, Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53, Merck & Co., Inc. v Apotex Inc., 2013 FC 751

Gauthier v. Gauthier, 2019 ONCA 722

Keywords: Family Law, Child Support, Variation, Material Change in Circumstances, Civil Procedure, Orders, Varying or Setting Aside, Security for Costs

Hilson v. 1336365 Alberta Ltd., 2019 ONCA 727

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, 61.06(1)(a) and (c), Trillium Motor World Ltd. v. General Motors of Canada Ltd., 2016 ONCA 702

Montforts v. Clarke, 2019 ONCA 723

Keywords: Family Law, Custody and Access, Joint Custody, Parallel Parenting, Children’s Law Reform Act, R.S.O. 1990, c. 12, ss. 24(2), Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.)

FoodInvest Limited v. Royal Bank of Canada, 2019 ONCA 728

Keywords: Civil Procedure, Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 56.01(1) and 61.06(1)

Rubner v. Bistricer, 2019 ONCA 733

Keywords: Wills and Estates, Trusts, Bare Trusts, Torts, Conversion, Fiduciary Duties, Trustee de son tort, Civil Procedure, Res Judicata, Teixeira v Markgraf Estate, 2017 ONCA 819, Angus v Port Hope (Municipality), 2017 ONCA 566, In the Estate of Jean Elliott (2008), 45 ETR (3d) 84 (Ont. SC)

Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732

Keywords: Constitutional Law, Freedom of Expression, Voting Rights, Better Local Government Act, 2018, SO 2018, c 11, Canadian Charter of Rights and Freedoms, ss 2(b) and 3, Constitution Act, 1867, Longley v Canada (Attorney General), 2007 ONCA 852, Baier v. Alberta, 2007 SCC 31, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, Dunmore v. Ontario (Attorney General), 2001 SCC 94, Harper v. Canada (Attorney General), 2004 SCC 33, R. v. Oakes, [1986] 1 S.C.R. 103

Rodrigues v. Purtill, 2019 ONCA 743

Keywords: Torts, Negligence, MVA, Evidence, Admissibility, Experts, Damages, Civil Procedure, Reasonable Apprehension of Bias, Costs, Fiddler v Chiavetti, 2010 ONCA 210, Insurance Act, RSO 1990, c I8, O Reg 461/96, s. 4.3, Family Law Act, RSO 1990, c F3

Short Civil Decisions

Damiani v. QSR Group Inc., 2019 ONCA 725

Keywords: Civil Procedure, Default Judgements, Setting Aside

Ross v. Ross, 2019 ONCA 724

Keywords: Wills and Estates, Civil Procedure, Passing Accounts, Orders, Enforcement, Contempt

Carey v. Carey, 2019 ONCA 729

Keywords: Civil Procedure, Appeals, Adjournments

Hasselsjo v. Arcand, 2019 ONCA 735

Keywords: Torts, Defamation, Unjust Enrichment, Summary Judgment

Solomon v. Abughaduma, 2019 ONCA 737

Keywords: Civil Procedure, Costs

Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 744

Keywords: Civil Procedure, Costs

Criminal Decisions

Lochner v. Ontario (Attorney General), 2019 ONCA 730

Keywords: Criminal Law, Private Informations, Summary Determination, Criminal Code, RSC 1985, c C-46, ss 504, 507.1 and 685(1)

R v. Chambers (Publication Ban), 2019 ONCA 736

Keywords: Criminal Law, Sexual Assault, Reasonable Apprehension of Bias, R v Stewart (1992), 62 CCC (3d) 289 (Ont CA), appeal quashed, [1991] SCCA No 110, R v PG, 2017 ONCA 351

R v. Charley, 2019 ONCA 726

Keywords: Criminal Law, Robbery, Delay, Canadian Charter of Rights and Freedoms, s 11(b), Criminal Code, ss 686(4), 752.1, R v Jordan, 2016 SCC 27, R v Morin, [1992] 1 SCR 771, R v MacDougall, [1998] 2 SCR 45, R v Pearson, [1998] 3 SCR 620

R v. AN (Publication Ban), 2019 ONCA 741

Keywords: Criminal Law, Human trafficking, Assault, Evidence, Admissibility, Prior Statements, Video-recorded Statements, R v Sheppard, [2002] 1 SCR 869, R v Dinardo, [2008] 1 SCR 788

R v. Eadie, 2019 ONCA 739

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Failing to Stop, Mens Rea, Wilful Blindness, Sufficiency of Reasons, Criminal Code, ss 249(1)(a), 252(1.2), R v W(D), [1991] 1 SCR 742

R v Williams, 2019 ONCA 743

Keywords: Criminal Law, Aggravated Assault, Jury Instructions, Criminal Code, s 268(1), R v Scopelliti (1982), 34 OR (2d) 524, R v Corbett, [1988] 1 SCR 670, R v Rowbotham; R v Roblin, [1994] 2 SCR 463

Ontario Review Board

Tahuite (Re), 2019 ONCA 720

Keywords: Ontario Review Board, Not Criminally Responsible, R v Smith, [2004] 1 SCR 385

Abeje (Re), 2019 ONCA 734

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Criminal Code, s 672.54, R v Ferguson, 2010 ONCA 810, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, Afemui (Re), 2016 ONCA 689, Sim (Re), 2019 ONCA 719, Woods (Re), 2019 ONCA 87, R v Owen, 2003 SCC 33, Gonzalez (Re), 2017 ONCA 102

Foote (Re), 2019 ONCA 731

Keywords: Ontario Review Board, Sufficiency of Reasons, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA)


CIVIL DECISIONS

AgriMarine Holdings Inc. v. Akvatech AS, 2019 ONCA 713

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

Counsel:

Adam D. H. Chisholm and Holly Sherlock, for the appellants
Jason W. J. Woycheshyn and Joseph N. Blinick, for the respondent

FACTS:

This is an appeal by AgriMarine Holdings Inc. and AgriMarine Industries Inc. from an order dismissing an application for a declaration that Akvatech AS was in breach of contract and is not the holder of a license to certain fish-rearing technology owned by the appellants (the “Technology”). The proceedings engage the parties’ rights and obligations under a contract (the “Letter Agreement”). At issue in the litigation was whether either party was in breach of the Letter Agreement, whether, after AgriMarine failed to refund the Pre-payment Amount, Akvatech had obtained a license under the Letter Agreement, and whether the appellants’ claim was statute-barred or otherwise barred by laches or estoppel.

ISSUES:

(1) Did the application judge err in permitting Akvatech to take advantage of its own breach of contract in order to obtain the license to the Technology?

(2) Did the application judge err, after concluding that the Letter Agreement had terminated, and where there was no default by AgriMarine, in permitting Akvatech to obtain a license?

(3) Is the license unenforceable because it appears to be of unlimited duration but does not provide for any royalty payments?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The court found that this is not a case about the exercise of rights and remedies following a breach of contract. The court below found that the parties, through their conduct, agreed to terminate the Letter Agreement.

(2) No. Notwithstanding the positions of their counsel, the parties had agreed that, once the Letter Agreement was terminated, the Pre-payment Amount would be demanded, and a Default Notice would issue. The court found the application judge’s decision to be a reasonable interpretation of s. 2 of the Letter Agreement that, as the application judge concluded, it was meant to provide security for the refund of the Pre-payment Amount.

(3) No. The court saw no reason to interfere. The application judge considered all the relevant factors, including the terms of the license, and of the Letter Agreement as a whole, and the fact that the parties had agreed to the provision while represented by legal counsel. The court agreed that the absence of a licensing fee or royalty rate would not make the license unenforceable.

Gauthier v. Gauthier, 2019 ONCA 722

[Hoy A.C.J.O., Nordheimer and Jamal JJ.A.]

Counsel:

E. Vine and J Walsh, for the appellant
J. Judge (Gauthier), acting in person

Facts:

In 2010, the appellant was ordered to pay child support to the respondent. On August 4, 2016, Barnes J of the Superior Court of Justice dismissed the appellant’s motion to vary the child support order and ordered that the appellant not bring any further motions without leave of that court. On February 7, 2019, the appellant brought a motion for leave to proceed with a motion to change the 2010 order for child support and for leave to proceed with a motion to reduce a 2012 order for security for costs. His motion was dismissed in both respects.

Issue:

(1) Did the motion judge err in dismissing the motion for leave to proceed with a motion to change the 2010 order for child support?

(2) Did the motion judge err in dismissing the motion for leave to proceed with a motion to reduce a 2012 order for security for costs?

Holding:

Appeal allowed.

Reasoning:

(1) The motion judge failed to explain why he was not so persuaded in light of the financial information provided by the appellant, and therefore his conclusions were not entitled to deference. The 2010 order for child support was based on an income of $123,000. In the intervening years, the appellant produced notices of assessment showing a significant reduction in income, as well as a personal assignment in bankruptcy in 2016. It is clear that the circumstances were not as they were when the original order was made, and that the appellant should at least have the opportunity to make his case for a change.

(2) The uncontradicted evidence of the appellant was that the existing security for costs order requiring him to post $59,500 before he can proceed with a motion to change is an insurmountable obstacle to his ability to have the child support order reviewed. The motion judge’s reasons do not allow for meaningful appellate review and cannot stand.

Without commenting on whether the security for costs order was appropriate when it was made, there is now enough evidence to make a prima facie case of change in circumstances warranting a review of the child support order. The Court reduced the security for costs order to $10,000 as the appellant requested, which was an amount that still provides some measure of protection to the respondent.

Hilson v. 1336365 Alberta Ltd., 2019 ONCA 727

[Lauwers JA]

Counsel:

H.W. Reininger, for the moving party
J. Rosenstein, for the responding parties

Facts:

The moving party and respondent in this appeal seeks an order for security for costs from the appellants under Rules 61.06(1)(a) and (c). At trial, judgment was granted against the appellants for $723,479.66, plus interest at the rate of 12 percent per annum from July 3, 2012. While the Court heard the appeal on November 15, 2018, the decision issued by the Court on May 27, 2019, was withdrawn due to procedural error, and the matter is set to be reargued on October 30, 2019. The moving party did not seek an order for security for costs before the first appeal hearing.

Issues:

(1) Does the moving party meet the test for security for costs under Rule 61.06(1)(a)?

(2) Does the moving party meet the test for security for costs under Rule 61.06(1)(c)?

(3) Is there any discretionary reason why security for costs should not be ordered?

Holding:

Motion dismissed.

Reasoning:

(1) No. The Court was unable to conclude that the appeal had so little merit that it reaches the threshold of being frivolous and vexatious under Rule 61.01(1)(a).

(2) Yes. The Court accepted the moving party’s assertion that the appellants have no assets in Ontario, and the hearsay evidence contained in the letter from the moving party’s British Columbia counsel providing some information about the disposition of the appellants’ assets there. The appellants tendered no evidence in response and the Court drew an adverse inference that the moving party’s assertions have merit.

(3) Yes. The authority to order security for costs is discretionary and delay is a relevant factor as noted by Huscroft JA in Trillium Motor World Ltd. v General Motors of Canada Ltd., 2016 ONCA 702 at paras 31 and 35. The appellant’s lack of assets was known to the moving party before the first appeal was argued, and there was no explanation for the delay in waiting to bring this motion before re-argument of the appeal.

Montforts v. Clarke, 2019 ONCA 723

[Hoy A.C.J.O, Nordheimer and Jamal JJ.A]

Counsel:

Amanda Chapman, for the appellant
Jesse Schmidt, for the respondent

FACTS:

The appellant appeals from a judgment that awarded the respondent sole custody of the parties’ then twelve-year-old son, along with various ancillary orders.

ISSUES:

(1) Did the trial judge err by failing to give proper weight to the son’s preferences?

(2) Did the trial judge err by failing to provide adequate reasons?

(3) Did the trial judge err by misunderstanding or misapplying the law relating to joint custody in the parallel parenting mode?

HOLDING:

Appeal dismissed.

REASONING: 

(1) No. The son expressed different preferences during his three interviews with the Office of the Children’s Lawyer. The trial judge’s decision was consistent with his repeated preferences.

(2) No. The trial judge’s reasons were careful and detailed. The trial judge was not required to make specific reference to the factors in subsection 24(2) of the Children’s Law Reform Act, nor was she required to expressly address each and every factor that is set out in this subsection.

(3) No. The trial judge was well aware that this was a high conflict case. A parallel parenting order in which each parent is allocated his or her exclusive sphere of decision-making still requires some ability of the parents to communicate in the face of inevitable gaps in even the most detailed order. The trial judge’s decision was fact-based and entitled to deference.

FoodInvest Limited v. Royal Bank of Canada, 2019 ONCA 728

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

Counsel:

Glenroy Bastien, for the moving party
Catherine Francis, for the responding party

Facts:

In the underlying action, the appellant alleged, among other things, that the respondent Bank was negligent because it failed to notify the appellant that it had been advised by the Polish bank to which it had wired funds, at the appellant’s request, that the Polish bank suspected fraud in relation to the wire transfers. On December 27, 2018, Morgan J. granted summary judgment dismissing the appellant’s action against the Bank on the basis that the Bank did not owe the appellant a duty of care to advise it of the Polish bank’s suspicions. He further found that if the Bank did owe the appellant a duty of care in respect of the information it received from the Polish bank, in the absence of expert evidence from the appellant as to the standard of care, the appellant could not prove negligence.

On March 28, 2019, Tulloch J.A. granted the respondent Bank security for costs of this appeal. On May 9, 2019, Benotto J.A. dismissed the appellant’s motion for a further extension of time to perfect its appeal. On May 23, 2019, the Registrar dismissed this appeal for delay. The appellant moved to review the orders of Tulloch J.A., Benotto J.A., and set aside the Registrar’s order.

Issues:

(1) Did Tulloch J.A., err in granting the respondent Bank security for costs?

(2) Did Benotto J.A. err in dismissing the appellant’s motion for a further extension of time in which to perfect its appeal?

(3) Should the Registrar’s order dismissing this appeal be set aside?

Holding:

Motion granted.

REASONING: 

(1) Yes. In bringing its motion for security for costs, the Bank relied primarily on Rule 61.06(1)(a) of the Rules of Civil Procedure. That provision permits a judge of the appellate court, on motion, to make such order for security for costs of the proceeding and of the appeal as is just where it appears that (1) there is a good reason to believe that the appeal is frivolous and vexatious; and (2) that the appellant has insufficient assets in Ontario to pay the costs of the appeal. However, in ordering security for costs, the court found that Tulloch J.A. did not find that there was good reason to believe that the appeal was frivolous and vexatious, he only determined that the appellant did not have sufficient funds in Ontario to pursue the appeal. The court noted that while the appellant was not represented by counsel before Tulloch J.A., the appellant had now retained counsel who explained to the court that there was a genuine issue requiring a trial. Specifically, the appellant argued that Morgan J. erred in finding that a bank is not required to notify its customer when it is told by another bank that it suspects that the party with which the customer is doing business is engaging in a fraud. The appellant further submitted that expert evidence was not required in such circumstances. Based on these submissions, the court held that there was no basis to award security for costs under Rule 61.06(1)(a).

The court further held that to the extent that the respondent Bank relied on Rules 61.06(1)(b) and (c) and 56.01(1)(d), the appellant was a corporation, and, based on the materials that the Bank filed before Tulloch J.A., the court agreed that there was good reason to believe that the appellant had insufficient assets in Ontario. However, the court found that in making his determination, Tulloch J.A. did not consider the justness of the order sought in the circumstances of the case. The court found that even where the other provisions of Rules 56 or 61 are met, the failure to consider the justness of the order constitutes an error in principle. The court ultimately held that the justice of the case required Tulloch J.A. to permit the appellant to perfect its appeal before considering if security for costs were warranted. Orders for security for costs are protective in nature and it was unclear that the respondent required protection at the time it brought its motion.

(2) Yes. In denying the appellant a further extension of time to perfect its appeal beyond that ordered by Tulloch J.A., Benotto J.A. relied in part on the fact that the appellant had not complied with the previous order of Tulloch J.A. to pay security for costs. In light of the answer to (1), the court was required to consider de novo the issue of whether a further extension of time should be granted. Ultimately, the court found that the appellant’s delay in perfecting its appeal prior to Benotto J.A. denying the appellant a further extension of time was two (2) months. The court inferred that the lack of counsel was a significant cause of delay. The court was not persuaded that any prejudice to the Bank would arise from the appellant’s delay in the instant case. Furthermore, having reviewed the reasons of Morgan J., the court held that this was not a case where the appeal had so little merit that the court could reasonably deny the important right of appeal. Accordingly, the court held that the justice of the case required that the appellant be granted a further, and final, extension of time to October 21, 2019 to perfect its appeal.

(3). Yes. Having set aside the orders of Tulloch J.A., and Benotto J.A., and granting the appellant a further, and final, extension of time, the court also set aside the Registrar’s order.

Rubner v. Bistricer, 2019 ONCA 733

[Feldman, Pepall and Miller JJ.A.]

Counsel:

Anne Posno and Amy Sherrard, for the appellants, AB and BB
David Steinberg, for the respondent BR in his capacity as Litigation Guardian for ER
Arieh Bloom, for the respondents MR and JR in their capacity as Joint Attorneys for Property of ER
John Adair, for the respondent JR
Ian C. Matthews, for the intervenors on the appeal Mattamy (Sixth Line) Limited, Mattamy (Oak) Limited, Mattamy (Penlow) Limited, 1214850 Ontario Inc., Mattamy Realty Limited, Ruland Realty Limited, and Bratty Building

FACTS:

The issues before the court arise out of a financial dispute among adult siblings over the entitlement to part of an interest in a very valuable investment that was made by their father in the 1960’s. The investment was a 10% interest in a large future residential development in Oakville, Ontario. The balance is owned by affiliates of Mattamy Homes (collectively “Mattamy Homes”). The investment was always held by the mother in trust for the three siblings, in equal shares. This reflected her clear and uncontested intention to benefit her three children equally.

In recent years, the daughter, who lives in the United States, disclaimed her interest in the investment, for tax reasons.

When distributions began to be made by Mattamy Homes in 2014, they were paid to the mother and deposited into two bank accounts opened for her. By that time, one of the brothers had sold his share to Mattamy. The other brother claimed that he had already received his one-third share of the investment from the mother some years earlier. The sister claimed that the mother had made an oral gift to her of the distributions from the one-third portion of the investment that reverted to the mother following the sister’s disclaimer.

It was not disputed that half the funds in the bank accounts belonged, beneficially, to the brother who had not sold his interest. The central issue on the appeal was whether the other half of the funds in the bank accounts belonged beneficially to the mother or to the sister.

ISSUES:

(1) Did ER hold one half of the distributions from Lower Fourth in the two bank accounts as bare trustee for BB?

(2) Does the above have an impact on the liability of BB’s husband, AB, for conversion or as trustee de son tort in respect of two cheques issued to BB?

(3) Does ER also hold one half of the future distributions from Lower Fourth as bare trustee for BB?

(4) Are the appellants entitled to advance the bare trust argument on appeal?

(5) Is it appropriate or necessary for the court to make any order respecting any findings made by the application judge in respect of the 2014 Will?

(6) Did the trial judge err in awarding costs on a substantial indemnity basis?

HOLDING:

Appeal allowed.

REASONING:

(1) Yes. BB originally held the beneficial interest in a one-third share in the Joint Venture interest. But, apparently for tax reasons, she disclaimed that interest. However, she never took the position that she had disclaimed any amounts that would come to her from her mother after her disclaimed interest resulted back to her mother. A bare trust is generally accepted to be a trust where the trustee holds property without any active duties to perform other than to convey the trust property to the beneficiaries on demand.

(2) Yes. The court found that under the bare trust, the trustee was obliged to deliver the trust property on demand – BB was entitled to receive those funds when she asked for them. The court accepted that AB effectively took it upon himself to act as a trustee and to possess and administer trust property, but did not commit a breach of trust in so doing because he did not act inconsistently with the terms of the trust.

(3) No. As discussed above, future property cannot be the subject matter of a trust. The court found that there was no action that relates to an intention to create a trust over any funds not yet deposited or over ER’s interest in the Joint Venture.

(4) Yes. The Court found that it was well-placed, based on the evidentiary record before it, to respond to the request for advice and directions and to determine the correct legal characterization of BB’s interest, if any, in the Joint Venture distributions attributable to her original one-third interest. It was therefore in the interests of justice to address the bare trust argument on appeal.

(5) No. The court stated that the issue raised regarding whether a finding in one proceeding will be treated as res judicata in another proceeding is to be answered by the judge hearing the possible Will challenge litigation, the other proceeding. The court may only be called upon to address the issue on an appeal from a finding that it either is or is not res judicata.

(6) Yes. The court invited written costs submissions.

Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732

[MacPherson, Tulloch, Miller, Nordheimer and Harvison Young JJ.A.]

Counsel:

Robin K. Basu, Yashoda Ranganathan and Audra Ranalli, for the appellant
Diana W. Dimmer, Glenn K.L. Chu, Philip Chan and Fred Fischer, for the respondent
Adam Goldenberg and Amanda D. Iarusso, for the intervenor Canadian Constitution Foundation
Derek Bell, for the intervenor Canadian Taxpayers Federation
Alexi N. Wood, for the intervenor David Asper Centre for Constitutional Rights
Stéphane Émard-Chabot, Mary Eberts and William B. Henderson, for the intervenor Federation of Canadian Municipalities
Paul Koven, for the intervenor Toronto District School Board

Facts:

The Ontario legislature enacted the Better Local Government Act, 2018 (the “Act”) that reduced the number of City councillors from 47 to 25 shortly before the 2018 municipal election. The City argued that the Act violated the Charter, and also that it was inconsistent with the unwritten constitutional principles of democracy and law. The application judge found that the Act breached section 2(b) of the Charter of Rights and Freedoms (the “Charter”), on the basis that (a) the change in number and size of the electoral wards interfered with candidates’ ability to campaign; and (b) increasing the ward size denied the voters’ right to cast a vote that can result in effective representation. The judge determined that the limits on freedom of expression were not reasonable, and could not be justified under s. 1 of the Charter.

Issues:

(1) Does the City have standing to assert a breach of s. 2(b) Charter rights?

(2) Did the application judge err by finding that the Act limited the respondents’ s. 2(b) Charter rights as a result of:

a) the mid-election change in the number and size of wards; and

b) the impairment of voter parity and effective representation?

(3) Did the application judge err by concluding that limits imposed by the Act on the exercise of freedom of expression were not justified?

(4) Do unwritten constitutional principles provide courts with an independent basis to invalidate the Act?

(5) Does s. 92(8) of the Constitution Act, 1867 contain inherent jurisdictional limits that render the Act unconstitutional?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. All of the original applicants, except the City, had settled the litigation. Ontario argued that, in their absence, the City had no standing to assert a Charter breach since the Charter does not confer rights on governments. However, the issues on appeal are serious, and given that the City’s role in the litigation prior to the appeal was not challenged, it is reasonable to allow the City to step into the position of the settling parties and argue the appeal in their stead as a means of ensuring the decision below is properly reviewed. However, the court emphasized that this result did not endorse the view that the City would have had standing to bring the application in the first place.

(2) a) & b) Yes. The application judge misconstrued the meaning of section 2(b) of the Charter by (i) extending it to guarantee that government action will not render anyone’s expression less effective; and (ii) by subsuming a separate Charter right – the right to vote (s. 3) – within the freedom of expression.

(i) S. 2(b) Does not Extend to Expression Effectiveness

The freedom to communicate with others is an important component of freedom of expression. Section 2(b) of the Charter protects against government interference with most such communication. However, section 2(b) protects against interference of the expressive activity itself, not its intended result.

Furthermore, the extent that section 2(b) has a positive dimension to it is an exception, and a set of criteria from Baier v. Alberta must be met for such an exceptional case to succeed. While the City argued that it was not putting forth a positive rights claim, the judge erred by failing to refer to this framework, and instead applying the Irwin Toy Ltd. v. Quebec (Attorney General) analysis.

The court held that, after applying the Baier analysis, the City was asserting a positive claim. The court therefore applied the framework from Dunmore v. Ontario (Attorney General). The court found that the claim failed on all three steps of the Dunmore test: (a) the claim was not grounded in freedom of expression, rather than access to a particular statutory regime; (b) the claim of substantial interference is not met; and (c) the government is not responsible for the claimants’ inability to exercise freedom of expression.

(ii) Subsuming the Right to Vote into the Right to Freedom of Expression

The application judge also erred by concluding that, since Charter rights are interrelated, the freedom of expression guarantees that a vote must satisfy the requirements for meaningful and effective representation guaranteed by section 3 for voting in provincial and federal elections. However, section 2(b) and 3 rights are distinct and must be given independent meaning.

(3)Yes. It was an error for the judge to hold that the claimants had established that their exercise of freedom of expression had been limited by the Act, and so it is not necessary to consider this part of the Charter analysis.

(4) No. Unlike the rights enumerated in the Charter – rights whose textual formulations were debated, refined, and ultimately resolved by the committees and legislative assemblies entrusted with constitution-making authority – the concepts of democracy and rule of law have no canonical formulations. They are complex and multifaceted and they cannot supply judges with the relatively determinate guidance provided by rules set down by other institutions in advance.

(5) No. Section 92(8) is simply a general grant of lawmaking authority to the provincial legislatures with respect to municipal institutions. Section 92(8) does not constitutionalize any particular form of municipal governance. It neither mandates nor precludes particular municipal institutions, nor does it regulate any acts of law making related to municipal government. While courts have sometimes used unwritten principles to fill in “gaps”, there were no gaps present.

Dissent (MacPherson J.A.):

MacPherson J.A. dissented on one issue. In his view, the Act should be invalidated under section 2(b) because, by reducing the size of City Council from 47 to 25 wards and changing the boundaries of all city wards mid-election, the Act interfered in an unwarranted fashion with the freedom of expression of candidates in a municipal election. He agreed with the applicant judge on this point.

MacPherson then went on to determine whether the Act could be saved under section 1 of the Charter. He concluded it could not on the basis that it failed the first branch of the Oakes test. He stated that the majority gave insufficient weight to the crucial fact that the timing of the Act had a substantial impact on a municipal election that was well underway. Introducing the Act mid-election changed the entire landscape of that election. It drastically reduced the number of wards and also altered the boundaries of all the wards. The timing of the Act represented a substantial attack on the centrepiece of democracy in an established order of Canadian government – an active election in a major Canadian municipality.

Further, he stated that the majority interpreted the activity affected by the Act too narrowly. While voting or candidacy rights in the context of municipal elections remain statutory in nature and therefore subject to repeal by the legislature, political expression during an active municipal election consists of far more than the pursuit or casting of a ballot on voting day. He argued that s. 2(b) safeguards the integrity and stability of the democratic foundation on which elections are based.

He also disagreed with the statements that the application judge erred by expanding the purpose of section 2(b) from a guarantee of freedom from government interference with expression to a guarantee that government action would not impact the effectiveness of that expression in achieving its intended purpose. He also did not agreed that the application judge erred by conflating the concepts of positive and negative rights, or that he failed to consider the framework for analysing a positive rights claim, and thereby impermissibly extended the scope of section 2(b).

The judge reasoned that by altering the 2018 ward structure in the middle of the election, the Act undermined expressive freedom in several ways. First, it diminished the value of all past expression that had been framed around a 47-ward election already underway. Candidates could no longer run in the wards where they had already spent considerable time, money and energy campaigning, which demoralized many and caused at least some to drop out of the race entirely. Second, the timing of the changes caused widespread confusion and uncertainty. It deflected attention away from important civic issues, triggered a flurry of foreseeable legal challenges, and jeopardized the viability of administering the election on schedule. Third, the Act restricted candidates, volunteers, voters, donors and commentators from continuing to express themselves within the established terms of an election then in progress. This effect in particular amounted to an infringement of s. 2(b) of the Charter; it substantially interfered with the right of all electoral participants to freely express themselves within the terms of the election after it had begun. By extinguishing almost half of the city’s existing wards midway through an active election, Ontario blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates, and the reciprocal engagement of many informed voters.

Rodrigues v. Purtill, 2019 ONCA 740

[Strathy CJO, MacPherson and Tulloch JJ.A.]

Counsel:

TJ McCarthy and RJ Campbell, for the appellant BLP
JC Lisus and Z Naqi, for the respondents

Facts:

This appeal arises from the trial of a motor vehicle accident case in which the appellant, driving while impaired, drove into the respondents’ vehicle, causing the death of a young child and serious personal and psychological injuries to other family members. Liability was admitted.

Issues:

(1) Did the trial judge demonstrate bias?

(2) Did the trial judge err in permitting a witness to rely on a Statistics Canada report?

(3) Did the trial judge improperly consider the evidence of a registered psychologist instead of a physician, as required by statute?

(4) Did the damages awards exceed the applicable range?

(5) Did the trial judge err in the amount of costs awarded?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The trial judge’s comments about the “threshold” regulation during the trial did not come close to demonstrating bias. The trial judge’s comments, while displaying some frustration, can reasonably be viewed as seeking assistance from counsel and some witnesses on the interpretation of the legislation and its application to the facts of this case. Moreover, the appellant failed to demonstrate any connection between the trial judge’s comments and alleged errors in his application of the legislation.

(2) No. The fact that the witness considered statistical information as one of the many elements of the knowledge, information, and experience grounding his opinion, did not render his evidence inadmissible.

(3) No. Section 4.3 of the O Reg 461/96 requires that the plaintiff adduce the evidence of one or more “physicians” who are “trained for and experienced in the assessment or treatment of the type of impairment” alleged. Evidence of psychologists has been accepted in other such cases, without objection. Furthermore, the plaintiff’s failure to object, when the witness was qualified, can reasonably be taken to be an acknowledgment that the witness was qualified to give the opinion she tendered. Finally, the psychologist’s evidence was confirmed by the evidence of the appellant’s own expert psychiatrist, which satisfied the requirements of the threshold.

(4) No. The awards of damages for loss of care, guidance and companionship under the Family Law Act did not exceed the range set out by the court in Fiddler v Chiavetti.

(5) No. The appellant failed to demonstrate that the costs were not fair and reasonable, or that the trial judge made an error in principle in his assessment.


SHORT CIVIL DECISIONS

Damiani v. QSR Group Inc., 2019 ONCA 725

[Hoy A.C.J.O., Nordheimer and Jamal JJ.A.]

Counsel:

M. Tubie, for the appellant
Cameron D. Neil, for the respondent

Keywords: Civil Procedure, Default Judgements, Setting Aside

Ross v. Ross, 2019 ONCA 724

[HOY A.C.J.O., Tulloch and Jamal JJ.A.]

Counsel:

W. Gerald Punnett, for the appellant JGS
Mark A. Radulescu, for the respondent

Keywords: Wills and Estates, Civil Procedure, Passing Accounts, Orders, Enforcement, Contempt

Carey v. Carey, 2019 ONCA 729

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

Counsel:

Olando Vinton, for EC and DaC
Richard Watson, for RC, LCP, and DA
Yonatan Lipetz, for AC and DoC

Keywords:

Hasselsjo v. Arcand, 2019 ONCA 735

[Hoy A.C.J.O., Nordheimer and Jamal JJ.A.]

Counsel:

SH, in person
James Riewald, for the respondents

Keywords: Civil Procedure, Appeals, Adjournments

Solomon v. Abughaduma, 2019 ONCA 737

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

Counsel:

Anu Koshal and Natalie V Kolos, for the appellant RA
AS, acting in person
Shantona Chaudury and Brodie Noga, appearing as amicus curiae

Keywords: Civil Procedure, Costs

Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 744

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

Counsel:

Michael A. Hines and Amanda J. Hunter, for the appellant
Andrew F. Camman, Susan A. Toth and Sarah Bauer, for the respondent

Keywords: Civil Procedure, Costs


CRIMINAL DECISIONS

Lochner v. Ontario (Attorney General), 2019 ONCA 730

[MacPherson, Watt and Miller JJ.A.]

Counsel:

LL and SL, self-represented
G MacDonald, for the respondent

Keywords: Criminal Law, Private Informations, Summary Determination, Criminal Code, RSC 1985, c C-46, ss 504, 507.1 and 685(1)

R v. Chambers (Publication Ban), 2019 ONCA 736

[Watt, Miller, and Fairburn JJ.A.]

Counsel:

Michael Dineen, for the appellant
Vallery Bayly, for the respondent

Keywords: Criminal Law, Sexual Assault, Reasonable Apprehension of Bias, R v Stewart (1992), 62 CCC (3d) 289 (Ont CA), appeal quashed, [1991] SCCA No 110, R v PG, 2017 ONCA 351

R v. Charley, 2019 ONCA 726

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

Michael Fawcett, for the appellant
Philip Campbell and Howard L Krongold, for the respondent

Keywords:Criminal Law, Robbery, Delay, Canadian Charter of Rights and Freedoms, s 11(b), Criminal Code, ss 686(4), 752.1, R v Jordan, 2016 SCC 27, R v Morin, [1992] 1 SCR 771, R v MacDougall, [1998] 2 SCR 45, R v Pearson, [1998] 3 SCR 620

R v. AN (Publication Ban), 2019 ONCA 741

[Juriansz, Pepall, and Roberts JJ.A.]

Counsel:

Anil K. Kapoor and Victoria M. Chichalewska, for the appellant
Elena Middelkamp, for the respondent

Keywords: Criminal Law, Human trafficking, Assault, Evidence, Admissibility, Prior Statements, Video-recorded Statements, R v Sheppard, [2002] 1 SCR 869, R v Dinardo, [2008] 1 SCR 788

R. v. Eadie, 2019 ONCA 739

[Hourigan, Brown, and Paciocco JJ.A.]

Counsel:

Jessica Zita, for the appellant
Adam Wheeler, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Failing to Stop, Mens Rea, Wilful Blindness, Sufficiency of Reasons, Criminal Code, ss 249(1)(a), 252(1.2), R v W(D), [1991] 1 SCR 742

R v Williams, 2019 ONCA 743

[Juriansz, Watt, and Hourigan JJ.A.]

Counsel:

Carlos Rippell and Jeffrey Fisher, for the appellant
Linda Shin, for the respondent

Keywords: Law, Aggravated Assault, Jury Instructions, Criminal Code, s 268(1), R v Scopelliti (1982), 34 OR (2d) 524, R v Corbett, [1988] 1 SCR 670, R v Rowbotham; R v Roblin, [1994] 2 SCR 463


ONTARIO REVIEW BOARD

Tahuite (Re), 2019 ONCA 720

[Watt, Miller, and Fairburn JJA]

Counsel:

Stephen Gehl, for the appellant
Andrew Cappell, for the respondent
Lauren Barney, for St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Not Criminally Responsible, R v Smith, [2004] 1 SCR 385

Abeje (Re), 2019 ONCA 734

[Hourigan, Brown, and Paciocco JJA]

Counsel:

Ken J Berger, for the appellant
Nicolas de Montigny, for the respondent Attorney General of Ontario
Michele Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Not Criminally Responsible, Significant Threat to Public Safety, Criminal Code, s 672.54, R v Ferguson, 2010 ONCA 810, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, Afemui (Re), 2016 ONCA 689, Sim (Re), 2019 ONCA 719, Woods (Re), 2019 ONCA 87, R v Owen, 2003 SCC 33, Gonzalez (Re), 2017 ONCA 102

Foote (Re), 2019 ONCA 731

[Watt, Miller, and Fairburn JJA]

Counsel:

Anita Szigeti, for IF
Erica Whitford, for the Crown
Kathryn Hunt, for the Center for Addiction and Mental Health

Keywords: Ontario Review Board, Sufficiency of Reasons, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA)

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.