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Good morning,

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

It was a light week at Ontario’s Court of Appeal and most of the decisions released were criminal in nature.

Ramkey Communications Inc. v. Labourers’ International Union of North America involved an appeal of a judicial review of a construction union certification application. In allowing the appeal, the Court determined that the Divisional Court had misapplied the test for derivative federal jurisdiction established by a line of labour law cases culminating with the Supreme Court of Canada’s 2012 decision in Tessier. The result meant that the “construction technicians” were allowed to unionize under provincial labour laws and not regulated by federal labour laws as essential to federal works telecommunications projects.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Ontario (Labour) v. Sudbury (City), 2019 ONCA 854

Keywords: Civil Procedure, Provincial Offences, Leave to Appeal, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131, Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13

Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855

Keywords: : Insurance, Coverage, Fraud, Summary Judgment, Rules of Civil Procedure, RSO 1990, r 26.01, Shakur v. Pilot Insurance Co. (1990), 74 O.R. (2d) 673 (C.A.)

Ramkey Communications Inc. v Labourers’ International Union of North America , 2019 ONCA 859

Keywords: Labour Law, Administrative Law, Judicial Review, Union Certification, Doctrine of Derivative Jurisdiction, Labour Relations Act, 1995, SO 1995, c 1, Sched A, as amended, Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23

Reeb v. The Guarantee Company of North America , 2019 ONCA 862

Keywords: Insurance, Duty to Defend, Intentional Act, Exclusion, Limitation Period, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Non-Marine Underwriters, Lloyd’s of London v. Scalera, Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, Daverne v. John Switzer Fuels Ltd., 2015 ONCA 919, General Accident Assurance Co. of Canada v. Commissioner of Ontario Provincial Police Force et al. (1988), 64 O.R. (2d) 321, Broadhurst & Ball v. American Home Assurance Co. (1990), 1 O.R. (3d) 225, M.(E.) v. Reed (2003), 49 C.C.L.I. (3d) 57, Hanis v. University of Western Ontario (2006), 42 C.C.L.I. (4th) 65

Short Civil Decisions

Lopes Limited v. The Guarantee Company of North America, 2019 ONCA 853

Keywords: Construction Law, Summary Judgement, Performance Bond, Mitigation of Damages. Cockburn v. Trusts and Guarantee Co. (1917), 55 S.C.R. 264, British Westinghouse Electric Co. v. Underground Electric Railways Co., [1912] A.C. 673 (H.L.)

B. v. Allianz Global Risks US Insurance Company, 2019 ONCA 858

Keywords: : Insurance Law, Duty to Defend, Pleadings Rule Approach, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33

Goldsmith, Borgal & Company Ltd. V. Banerjee Goel Medicine Professional Corporation, 2019 ONCA 849

Keywords: Civil Procedure, Appeal Book Endorsement

Criminal Decisions

R v. Williams, 2019 ONCA 846

Keywords: Criminal Law, Jury Questions, Mens Rea, Criminal Code, ss. 229(a), (c) and 686(1), R. v. Martineau, [1990] 2 S.C.R. 633, R. v. Cooper, [1993] 1 S.C.R. 146, R. v. S(WD), [1994] 3 S.C.R. 521

R. v. Simeunovich, 2019 ONCA 856

Keywords: Criminal Law, Sentencing, Criminal Code, ss. 221, 252(1.2), 259(4), and 376(2)(d), Recidivism, R. v. Angelillo, 2006 SCC 55, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Lévesque, [2000] 2 S.C.R. 487

R. v. Herdman, 2019 ONCA 863

Keywords: Criminal Law, Evidence, Hearsay, Procedural Fairness, R. v. Forrester, 2019 ONCA 255

R. v. J.R.S. (Publication Ban), 2019 ONCA 852

Keywords: Criminal Law, Appeal Book Endorsement, Serious Bodily Harm

R. v. Kupec, 2019 ONCA 851

Keywords: Criminal Law, Sentencing, Appeal Book Endorsement

R. v. Mediouni, 2019 ONCA 857

Keywords: Criminal Law, Conspiracy, Jury Charge, Appeal Book Endorsement

R. v. Mirzadegan (Publication Ban), 2019 ONCA 864

Keywords: Criminal Law, Evidence, R. v. Bartholomew, 2019 ONCA 377, R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), R. v. L.(L.), 2009 ONCA 413

R. v. Noel, 2019 ONCA 860

Keywords: Criminal Law, Controlled Drugs and Substances Act, Charter of Rights and Freedoms, ss. 8, 9, 10(b), and 24(2), R. v. Bartle, [1994] 3 S.C.R. 173, R. v. Suberu, 2009 SCC 33, R. v. Rover, 2019

Ontario Review Board Decisions

C (Re), 2019 ONCA 861

Keywords: Ontario Review Board, Appeal Book Endorsement


CIVIL DECISIONS

Ontario (Labour) v. Sudbury (City), 2019 ONCA 854

[Brown J.A. (Motion Judge)]

Counsel:

David McCaskill, for the moving party

Ryan Conlin and Frank Portman, for the responding party

Keywords: Civil Procedure, Provincial Offences, Leave to Appeal, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131, Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13

facts:

This case involves a common type of construction project: a municipality enters into a contract for the repair and reconstruction of urban municipal roadways. In the present case, a piece of heavy equipment backed up without the presence of a signaller, and a human life was lost. The respondent was charged with offences under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“the OHSA”) alleging the contravention of statutory duties as a “constructor” and “employer” in respect of the road repair project.

The Respondent was acquitted on all counts and the Crown’s appeal to the Superior Court of Justice was dismissed. The Crown now seeks leave to appeal the acquittals on the basis that both courts below erred in their interpretation or application of the OHSA’s definitions of “constructor” and “employer”, improperly importing an element regarding the degree of the municipality’s control over the project into the definition of “employer” and improperly applying the control element in the definition of “constructor”.

issues:

(1) Should leave to appeal be granted pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”)?

holding:

Leave to appeal granted.

reasoning:

(1) Yes. Although the threshold for granting leave to appeal pursuant to s. 131 of the POA is very high, Justice Brown was satisfied that this case was one where the resolution of a question of law alone may have an impact on the jurisprudence in a way that is of interest to the public at large: Ontario (Labour) v. Enbridge Gas Distribution Inc., 2011 ONCA 13, 382 D.L.R. (4th) 343, at para. 34. He noted that a large number of municipal infrastructure projects are undertaken in Ontario each year in which the municipality contracts the work out to a third party. As such, whether a municipality may or may not fall within the definition of “employer” in respect of such projects by reason of the degree of control it exercises over the project engages a question of law alone of interest to the public at large. Justice Brown concluded that this constituted special grounds for leave to appeal within the meaning of POA s. 131.

Justice Brown also commented on the Crown’s argument that the trial judge erred at law by considering general, not specific, acts of due diligence. Although he found that the Crown’s ground of appeal in this respect was arguable, he did not regard the trial judge’s findings on the due diligence defence as an obstacle to granting leave to appeal on the legal question of the definition of “employer”, given the interest to the public at large of that legal issue.


Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855

[Feldman, Fairburn and Jamal JJ.A.]

Counsel:

Alan D’Silva and Alexandra Urbanski, for the appellant

Brian Brock and Stephen Libin, for the respondent

Keywords: Insurance, Coverage, Fraud, Summary Judgment, Rules of Civil Procedure, RSO 1990, r 26.01, Shakur v. Pilot Insurance Co. (1990), 74 O.R. (2d) 673 (C.A.)

facts:

The respondent insured a ring appraised at over $500,000. He brought the ring to a resort in the Dominican Republic, wore it on a gold chain around his neck late at night, and claimed it was stolen from him by a man who approached him. The respondent had lost another valuable ring and recovered from another insurer the year before. The insurer in this case denied the claim on the basis that the circumstances were suspicious and the insurer was not prepared to pay unless the respondent proved the loss.

On the underlying motions, the insurer sought to amend its claim to rely on the policy provisions excluding coverage for fraud if necessary in or der to have the evidence regarding the respondent’s credibility challenged.

On summary judgment, the motion judge refused the amendments, ordered the insurer to pay the claim. He also awarded punitive damages against the insurer for bad faith dealing, and awarded substantial indemnity costs.

issues:

(1) Did the motion judge err by failing to allow the insurer to amend its pleadings to rely on provisions of the policy that exclude coverage for deliberate acts or fraud?

(2) Did the motion judge err by granting summary judgment on the claim without giving consideration to the suspicious circumstances raised on the basis that they were not relevant without a plea of fraud?

holding:

Appeal allowed.

reasoning:

(1) Yes. Rule 26.01 provides that the court shall grant leave to amend a pleading “at any stage of an action”, unless there is prejudice that cannot be compensated by costs or an adjournment. In the Court’s view, there was no such prejudice in this case. The motion judge thus erred by denying the amendment and then excluding from his consideration the evidence that raised the credibility issues and concerns regarding the insured’s claim.

(2) Yes. The motion judge reversed the burden of proof by ignoring “suspicious circumstances”. The motion judge erred in finding that Shakur did not apply and was distinguishable because in this case the insurer had disclaimed reliance on fraud. While the appellant did not invoke the policy exclusions relating to fraud, the appellant was clearly challenging the respondent’s version of events. The Court found Shakur to be binding and applicable. The primary issue was whether the insured had proved on a balance of probabilities that theft of the ring had “occurred within the meaning of the policy”.

The motion judge was required to take a hard look at the entire record on the summary judgment motion in order to determine whether there was a genuine issue requiring a trial or whether he could decide the case on summary judgment. Because he did not do so, the Court was permitted to do so on the record. In the Court’s view, it was clear that the credibility of the claim and of the claimant was squarely in issue and required a trial.


Ramkey Communications Inc. v Labourers’ International Union of North America, 2019 ONCA 859

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

Counsel:

LA Richmond and B Katz, for the appellant Labourers’ International Union of North America

F. Cesario and A. Cohen, for the respondent Ramkey Communications Inc.

B. Channe and G. Di Sauro, for the respondent Utility Contractors Association of Ontario

C. Harris and R. Amarnath, for the intervener Attorney General of Ontario

Keywords: Labour Law, Administrative Law, Judicial Review, Union Certification, Doctrine of Derivative Jurisdiction, Labour Relations Act, 1995, SO 1995, c 1, Sched A, as amended, Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23

facts:

On August 5, 2015, the appellant applied to the Ontario Labour Relations Board (the “Board”) for certification under the construction industry provisions of the Labour Relations Act, 1995 of all of the respondent’s construction labourers employed in six Ontario counties except for those in the industrial, commercial and institutional sector, and persons at or above the rank of non-working foremen. These construction labourers were a subset of Ramkey’s employees in Ontario.

Ramkey opposed certification. It argued that its construction labourers — which it calls “construction technicians” — performed essential work for federally regulated telecommunications companies and that their labour relations should, therefore, be federally regulated.

The Board was not satisfied that the presumption of provincial jurisdiction was displaced and granted certification as a provincially regulated bargaining unit. Ramkey sought judicial review.

The Divisional Court found that Ramkey’s construction technicians were engaged derivatively in work that is vital, essential, or integral to a federal undertaking and, therefore, should be federally regulated. It quashed the Board’s decision.

issues:

(1) Did the Divisional Court correctly apply the legal test for derivative jurisdiction?

holding:

Appeal allowed.

reasoning:

(1) No. The Divisional Court erred by considering the extent to which the delivery of telecommunications services by Rogers and other telecommunications companies like Rogers was dependent on having a functioning network line and on work of the type performed by Ramkey’s construction technicians. The proper focus according to the Supreme Court in Tessier is the extent to which Rogers and the other telecommunications companies, to which Ramkey’s construction technicians provided construction services, were dependent on the services of Ramkey’s construction technicians (the particular employees under scrutiny). Given the clear findings by the Board that Rogers was not dependent on Ramkey’s construction technicians, the Court concluded that this is not a case where derivative federal jurisdiction can be found.


Reeb v. The Guarantee Company of North America, 2019 ONCA 862

[MacPherson, Pepall and Lauwers JJ.A.]

Counsel:

David J. Strangio, for the appellants The Guarantee Company of North America and The Co-operators General Insurance Company

Mark M. O’Donnell, for the respondent Royal & Sun Alliance Insurance Company of Canada

Myron W. Shulgan, Q.C., for the respondent RR

Keywords: Insurance, Duty to Defend, Intentional Act, Exclusion, Limitation Period, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Non-Marine Underwriters, Lloyd’s of London v. Scalera, Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179, Daverne v. John Switzer Fuels Ltd., 2015 ONCA 919, General Accident Assurance Co. of Canada v. Commissioner of Ontario Provincial Police Force et al. (1988), 64 O.R. (2d) 321, Broadhurst & Ball v. American Home Assurance Co. (1990), 1 O.R. (3d) 225, M.(E.) v. Reed (2003), 49 C.C.L.I. (3d) 57, Hanis v. University of Western Ontario (2006), 42 C.C.L.I. (4th) 65

facts:

This is an appeal from an application judge’s order that The Guarantee Company of North America (“Guarantee”) and Co-operators General Insurance Company (“Co-operators”) owe a duty to defend the applicant, RR, and from a second application brought by Royal & Sun Alliance Insurance Company of Canada (“RSA”) against Guarantee and Co-operators as a companion application in which the application judge found that the respondents had a duty to defend RR.

issues:

(1) Did the application judge err in declining to consider extrinsic evidence about whether RR’s conduct was intentional so as to bring it within the intentional act exclusion in the relevant insurance policies?

(2) Did the application judge err in determining that the assessment of the nature and quality of RR’s conduct was best left for trial?

(3) Is RSA’s application for contribution to the defence costs statute-barred under the Limitations Act or prevented under the specific contractual limitation periods found in the respective insurance policies?

(4) Is there the need for an order identifying the share of costs to be paid by each insurer?

holding:

Appeal dismissed.

reasoning:

(1) No, the application judge did not err by declining to consider extrinsic evidence about whether RR’s conduct was intentional so as to bring it within the intentional act exclusion in the relevant insurance policies. His conduct was presented in the pleadings as negligence only. The Court found that the application judge properly applied Monenco on the basis that “[t]he extrinsic evidence sought by the respondents to be considered here is evidence created after delivery of the claim and extrinsic to its content.” The application judge properly distinguished Scalera on the basis that on the bare facts the negligence allegation in the Scalera pleading was completely untenable. The Court held that this was not true of the present pleading in which the negligence claim was tenable.

(2) No. The Court agreed with the application judge that the assessment of the nature and quality of RR’s conduct is best left for trial. The application judge was right to rely on the principle that an application should not be “a trial within a trial”.

(3) No. The duty to defend is an ongoing obligation to be applied on a “rolling” basis. Since RSA only seeks contribution on a going forward basis, no limitation period attaches. Further, the insurance policies at issue are not business agreements under s. 22(5) of the Limitations Act, because the policy holders are consumers.

(4) No. The equal respective shares were properly set according to the principles in General Accident Assurance Co. of Canada v. Commissioner of Ontario Provincial Police Force et al. (1988), 64 O.R. (2d) 321. The Court held that how the insurers decide to carry out their duties to defend is something for them to work out going forward.


SHORT CIVIL DECISIONS

Lopes Limited v. The Guarantee Company of North America, 2019 ONCA 853

[Feldman, Fairburn and Jamal JJ.A.]

Counsel:

GL Sonny Ingram, for the appellant

Kenneth W. Movat and Maxwell Reedijk, for the respondent

Keywords: Construction Law, Summary Judgement, Performance Bond, Mitigation of Damages. Cockburn v. Trusts and Guarantee Co. (1917), 55 S.C.R. 264, British Westinghouse Electric Co. v. Underground Electric Railways Co., [1912] A.C. 673 (H.L.)

B. v. Allianz Global Risks US Insurance Company, 2019 ONCA 858

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

Counsel:

Clay Hunter, for the appellant

Robert J. Reynolds, for the respondents

Keywords: Insurance Law, Duty to Defend, Pleadings Rule Approach, Monenco Ltd. V. Commonwealth Insurance Co., 2001 SCC 49, Progressive Homes Ltd. V. Lombard General Insurance Co. of Canada, 2010 SCC 33

Goldsmith, Borgal & Company Ltd. V. Banerjee Goel Medicine Professional Corporation, 2019 ONCA 849

[Feldman, Fairburn and Jama JJ.A.]

Counsel:

Rajneesh Sharda, for the appellants

Robert Kostyniuk, for the respondent

Keywords: Civil Procedure, Appeal Book Endorsement


CRIMINAL DECISIONS

R v. Williams, 2019 ONCA 846

[Juriansz, Pepall and Roberts JJ.A.]

Counsel:

Michael Dineen, for the appellant

John Patton, for the respondent

Keywords:Criminal Law, Jury Questions, Mens Rea, Criminal Code, ss. 229(a), (c) and 686(1), R. v. Martineau, [1990] 2 S.C.R. 633, R. v. Cooper, [1993] 1 S.C.R. 146, R.v. S(WD), [1994] 3 S.C.R. 521

R. v. Simeunovich, 2019 ONCA 856

[Feldman, Trotter and Zarnett JJ.A.]

Counsel:

Jessica Zita, for the appellant

Catherine Weiler, for the respondent

Keywords:Criminal Law, Sentencing, Criminal Code, ss. 221, 252(1.2), 259(4), and 376(2)(d), Recidivism, R. v. Angelillo, 2006 SCC 55, Palmer v. The Queen, [1980] 1 S.C.R. 759, R. v. Lévesque, [2000] 2 S.C.R. 487

R. v. Herdman, 2019 ONCA 863

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

Counsel:

Andrew Furgiuele, for the appellant

Brian G. Puddington, for the respondent

Keywords: Criminal Law, Evidence, Hearsay, Procedural Fairness, R. v. Forrester, 2019 ONCA 255

R. v. J.R.S. (Publication Ban), 2019 ONCA 852

[Simmons, Watt and Miller JJ.A.]

Counsel:

Jeremy D. Tatum, for the appellant

Ian R. Smith, for the respondent

Keywords:Criminal Law, Appeal Book Endorsement, Serious Bodily Harm

R. v. Kupec, 2019 ONCA 851

[Simmons, Watt and Miller JJ.A.]

Counsel:

Brian Weingarten, for the appellant

Kelly Simpson, for the respondent

Keywords:Criminal Law, Sentencing, Appeal Book Endorsement

R. v. Mediouni, 2019 ONCA 857

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

Counsel:

Ingrid Grant, for the appellant

Cindy Afonso, for the respondent

Keywords: Criminal Law, Conspiracy, Jury Charge, Appeal Book Endorsement

R. v. Mirzadegan (Publication Ban), 2019 ONCA 864

[MacPherson, Pepall and Lauwers JJ.A.]

Counsel:

Matthew R. Gourlay, for the appellant

Roger A. Pinnock, for the respondent

Keywords: Criminal Law, Evidence, R. v. Bartholomew, 2019 ONCA 377, R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), R. v. L.(L.), 2009 ONCA 413

R. v. Noel, 2019 ONCA 860

[Huscroft, Paciocco and Nordheimer JJ.A.]

Counsel:

Leo Salloum, for the appellant

Marie Comiskey, for the respondent

Keywords: Criminal Law, Controlled Drugs and Substances Act, Charter of Rights and Freedoms, ss. 8, 9, 10(b), and 24(2), R. v. Bartle, [1994] 3 S.C.R. 173, R. v. Suberu, 2009 SCC 33, R. v. Rover, 2019


ONTARIO REVIEW BOARD DECISIONS

C (Re), 2019 ONCA 861

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

Counsel:

Anita Szigeti, for the appellant

Kathryn Hunt, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Vallery Bayly, for the respondent, the Attorney General of Ontario

Keywords:Ontario Review Board, Appeal Book Endorsement


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.