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Good afternoon.

I hope everyone’s New Year is off to a great start.

There were three civil decisions released by the Court of Appeal this week. Topics covered included the apportionment of costs following settlement of an MVA case, the admissibility of documents in a personal injury case, and Anti-SLAPP.

As many of you may know, my partner, Lea Nebel and I have been chairing the last few years a CLE at the OBA of “Top Appeals” from the Court of Appeal over the past year. The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Two of the cases we will be featuring this year are Darmar Farms v Sygenta, which deals with the potential new tort of “premature commercialization” and pure economic loss in product liability context, and The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. We are also lining up our speakers for a third decision that will be featured, so please stay tuned.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Bondy-Rafael v. Potrebic, 2019 ONCA 1026

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Costs, Apportionment, Mortimer v. Cameron (1994), 17 OR (3d) 1 (CA), Wright v. Wal-Mart Canada et al., 2010 ONSC 2936, Gorman v. Falardeau, 2004 CanLII 14959, Burns v. Hedge (2001), 146 OAC 333 (CA)

Bukshtynov v. McMaster University, 2019 ONCA 1027

Keywords: Torts, Negligence, Evidence, Admissibility, Hearsay, Documents in Possession, Business Records, Principled Exception, Occupational Health and Safety Act, R.S.O. 1990, c. O.1 s.1(d), 5(1) and 51, Evidence Act, R.S.O. 1990, c. E. 23 s. 35, R. v. Turlon (1989), 49 C.C.C. (3d) 186, R. v. Araya, 2015 SCC 11

Ontario College of Teachers v. Bouragba, 2019 ONCA 1028

Keywords: Tort, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685

Criminal Decisions

R. v. M., 2019 ONCA 1019

Keywords: Criminal Law, Weapons Offence, R. v. Weare, (1993) CCC (3d) 494

R. v. B., 2019 ONCA 1020

Keywords: Criminal Law, Assault, Identification Evidence

R. v. G.H., 2020 ONCA 1

Keywords: Criminal Law, Publication Ban, Sexual Interference, Incest, Jury Instructions, Evidence, Rule in Browne v. Dunn, Prior Inconsistent Statements, Cross-Examination, Credibility, Adverse Inferences, Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.), R. v. L.L., 2009 ONCA 413, R. v. T.M., 2014 ONCA 854, leave to appeal refused, [2015] S.C.C.A. No. 110, Deacon v. The King, [1947] S.C.R. 531, McInroy and Rouse v. R., [1979] 1 S.C.R. 588, R. v. Mannion, [1986] 2 S.C.R. 272, R. v. Squire, [1977] 2 S.C.R. 13, R. v. Bevan, [1993] 2 S.C.R. 599, Colpitts v. The Queen, [1965] S.C.R. 739, Wildman v. The Queen, [1984] 2 S.C.R. 311


CIVIL DECISIONS

Bondy-Rafael v. Potrebic, 2019 ONCA 1026

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

Counsel:

Sheldon A Gilbert, Q.C., for the appellants

Brian A Foster and Anne C Davenport, for the respondents, The Estate of LP, by his Estate Trustee, EMP, EMP, ALP, and AP Incorporated

Alan L Rachlin, for the respondents, KLBR, TCE, a minor by his Litigation Guardian, LR, SO, a minor by his Litigation Guardian, LR and LR

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Costs, Apportionment, Mortimer v. Cameron (1994), 17 OR (3d) 1 (CA), Wright v. Wal-Mart Canada et al., 2010 ONSC 2936, Gorman v. Falardeau, 2004 CanLII 14959, Burns v. Hedge (2001), 146 OAC 333 (CA)

facts:

This appeal turned on the correct analytical approach to be followed in the fixing of costs when an action is settled before its adjudication on the merits.

The POs appealed from the order of the motion judge that required them to pay all the plaintiffs’ partial indemnity costs in the amount of $927,934.08, without any contribution from the PI respondents (“the PIs”), but net of an agreed upon contribution by the City of Windsor. While they also took issue with the quantum of the costs award, the main thrust of their appeal challenged the motion judge’s apportionment of liability for damages as the basis for apportioning costs following the settlement.

The motion judge later heard argument on the issue of costs payable to the plaintiffs by the POs and the PIs. The plaintiffs’ disbursements were conceded, although their apportionment was not. The POs and the PIs each argued that the other should be primarily responsible for the payment of the plaintiffs’ costs.

The motion judge assessed the POs and the PIs respective liability based on his view of the merits of the action and concluded that the POs were entirely responsible for the plaintiffs’ damages. As a result, he found the POs solely responsible to pay the plaintiffs’ partial indemnity costs.

issues:

(1) Did the motion judge err in his apportionment of costs as between the POs and the PIs?

(2) Did the motion judge err in the amount of costs awarded to the plaintiffs?

holding:

Appeal allowed in part.

reasoning:

(1) Yes. The jurisprudence relied upon by the motion judge did not support the determination of the apportionment of liability for damages at a costs hearing. Mortimer v. Cameron (1994), 17 O.R. (3d) 1 (C.A.) (“Mortimer”) does not stand for the general proposition that the apportionment of costs must always replicate the apportionment of liability for damages. In Mortimer, the question was whether the apportionment of costs between defendants should follow the apportionment of liability made following a trial. The Court in that decision had determined that the apportionment of costs should follow the apportionment of liability in that particular case but did not state, as a general rule, that it should be followed in all cases. Indeed, the jurisprudence indicates that costs are not always apportioned in accordance with the co-defendants’ respective liability with respect to damages.

Further, the motion judge erred in fixing costs following the settlement of the action by carrying out an apportionment of the liability between the POs and the PIs for the plaintiffs’ damages, without a proper record and a trial on the merits. Permitting the adjudication of the parties’ respective liability for damages following settlement would run contrary to the purpose of settlements and trial fairness. In the circumstances of this case, the court found that the appropriate and fair apportionment of costs is that the POs and the PIs contribute equally to, and be held jointly and severally liable for, the plaintiffs’ costs.

(2) No. The POs submitted that the motion judge erred in awarding the plaintiffs $800,000 in fees on a partial indemnity basis. The PIs support and adopt the POs’ submissions. They raised five arguments based on: proportionality, the amount recovered, the reasonable expectations of the parties, the inclusion of the costs of the interlocutory motion, and the costs of the summary judgment motion brought by the PIs. The court did not intervene in any of the motion judge’s reasoning with respect to the above factors.


Bukshtynov v. McMaster University, 2019 ONCA 1027

[Lauwers, Fairburn and Zarnett JJ.A.]

Counsel:

Bonnie Roberts Jones and Bethanie Pascutto, for the appellant

Edward Key and Bradley Remigis, for the respondents Flying Angels Running Club, GK and HL

Alexander Paul and Kaleigh Sonshine, for the respondent McMaster University

Keywords: Torts, Negligence, Evidence, Admissibility, Hearsay, Documents in Possession, Business Records, Principled Exception, , Occupational Health and Safety Act, R.S.O. 1990, c. O.1 s.1(d), 5(1) and 51, Evidence Act, R.S.O. 1990, c. E. 23 s. 35, R. v. Turlon (1989), 49 C.C.C. (3d) 186, R. v. Araya, 2015 SCC 11

facts:

The appellant was jogging on an indoor track at McMaster University when HL, a member of the Flying Angels Running Club, ran into him from behind. The appellant suffered a serious injury and required surgery to his shoulder. No negligence was found on the part of McMaster University or HL. The Flying Angels Running Club, and its coach (the “Coach”), were found negligent. It was held that the plaintiff was 40% contributorily negligent by failing to move lanes when asked to do so.

issues:

Did the trial judge err:

(i) in his charge to the jury when he described the inner lane of the track as the “default lane”;

(ii) in ruling that an email authored by a track employee who did not testify was inadmissible;

(iii) in ruling that a letter sent by McMaster University to the Ontario Ministry of Labour was inadmissible; and/or

(iv) in ruling that a chart created by a subrogation reimbursement vendor for two U.S. insurers was inadmissible?

holding:

Appeal dismissed.

reasoning:

(i) No. The appellant argued that this charge to the jury would have left the jury with the impression that he was breaching an official rule by jogging in lane two and thus, would have adversely impacted the jury’s determination of contributory negligence. The court held that this charge was in line with the evidence. Furthermore, the jury knew that it fell within their sole domain to determine the facts of the case. They were instructed that nothing the trial judge said should sway them in their fact-finding mission. Finally, the jury did not decide the issue of contributory negligence based on the fact that this was the “default lane”.

(ii) No. The email was hearsay and double-hearsay. The appellant attempted to rely on R. v. Turlon for the proposition that the email was admissible under the documents in possession rule. This case did not assist the appellant. There was nothing about Mr. K.’s knowledge of the contents of the email that was relevant to the determination at trial. The receipt and filing of an email is not the type of action contemplated in Turlon for triggering the exception to the hearsay rule. The hearsay exception arising from the documents in possession rule only applies where the hearsay statement is “acted upon” in the sense that it turns into an admission by the recipient. The simple filing of an email, or even the preservation of a video (had that occurred), is not the type of action contemplated by the documents in possession rule.

Additionally, the email contained double hearsay. The inadmissible nature of that evidence is revealed by simply asking whether, had Ms. M. (the email’s author) testified, she would have been permitted to recount this hearsay. The answer is clearly no.

Furthermore, numerous witnesses testified about what had occurred that day and a number of those witnesses were referenced in the subject email.

(iii) No. Within days of the incident, McMaster University wrote a letter to the Ontario Ministry of Labour, Occupational Health and Safety Branch. The letter reported that a “critical injury” had occurred at the workplace. Among other things, the letter addressed the “Steps taken to prevent a recurrence”. The appellant attempted to introduce the letter into evidence during the cross-examination of Mr. K., the supervisor at the athletic centre.

The trial judge ruled the letter inadmissible, finding that the prejudicial impact of the letter outstripped its probative value. The court found that the trial judge’s decision to determine that the probative value is outweighed by its prejudicial effect is a discretionary one to which deference applies.

Furthermore, McMaster University reported the incident because it was of the view that it was required to do so under s. 51 of the Occupational Health and Safety Act. Considered against this legislative backdrop, the trial judge was right that the letter contained virtually no probative value.

(iv) No. The trial judge had concerns about the accuracy of the charts. His “immediate problem” was that the amounts reflected on the Rawlings’ records did not even “dovetail” with the appellant’s own calculations. Furthermore, the analyst did not have the “necessary medical background or knowledge of the internal decisions made by either of the health insurance carriers” to accurately draft said charts.

It was open to the trial judge to exclude the charts. They reflected nothing more than a compilation of source documents from the insurers, which documents were created many years before and provided to Rawlings only shortly before the trial. Indeed, the charts were created only two weeks before the appellant’s attempt to elicit them in evidence. The accuracy of the charts was very much in dispute, including, as the trial judge observed, as a result of the appellant’s own evidence.

The chart did not meet the test set out in s. 35(2) of the Evidence Act known as the business records rule because the charts were not made in the usual and ordinary course of business and did not record acts, transactions, occurrences or events within a reasonable time of those events.


Ontario College of Teachers v. Bouragba, 2019 ONCA 1028

[Lauwers, Fairburn and Zarnett JJ.A.]

Counsel:

AB, acting in person

Christine Lonsdale and Charlotte-Anne Malischewski, for the respondent

Keywords: Tort, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685

facts:

AB is a member of the Ontario College of Teachers (the “College”) and was a member of the College’s Council from July 1, 2012 to October 2, 2014, when he resigned. AB sent several communications to past and present members of the Council, the Attorney General of Ontario, and the Minister of Education advocating for a public inquiry into a wide range of alleged misconduct on the part of the College and people affiliated with it. The College sued, alleging that the communications were defamatory.

AB brought a motion to dismiss the defamation lawsuit under the Anti-SLAPP provisions set out in s. 137.1 of the Courts of Justice Act. The motion judge denied AB’s motion on the ground that he had not discharged his burden of proving that the defamation proceeding arose from an expression that related to a matter of public interest. AB appealed.

issue:

(1) Did the motion judge err in denying AB’s motion?

holding:

Appeal allowed.

reasoning:

(1) Yes. Although the motion judge adverted to the requirement to view the communications objectively, she did not properly apply the test. Viewed objectively, and divorced from any consideration of the merits or manner of expression and the motive of the speaker, the Court found that the communications could not be reasonably said to relate solely to “private grievances” and the motion judge’s finding to this effect were a palpable and overriding error.

The Court also noted that the finding appeared to have been impermissibly tainted by a consideration of AB’s motive. At the first threshold step of the analysis, in assessing whether the expression is a matter of public interest under s. 137.1(3) of the Courts of Justice Act, the court is not to consider the motivations of the allegedly defamatory speaker. Motivations do play a role in the third step relating to the “public interest hurdle”. However, the Court found in this case that the motion judge appeared to have taken AB’s motivations into account in concluding, at step one, that AB was expressing “private grievances,” so that the public interest element had not been satisfied.

Further, the motion judge misapprehended the test under s. 137.1 as set out in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 (“Pointes”). AB’s communications were mixed, but many elements manifestly engaged the public interest. Whether those elements were sufficient to attract the protection of s. 137.1 should have been assessed further at the second step, the “merits-based hurdle,” and at the third step, the “public interest hurdle.” However, the motion judge stopped her analysis at the first step and did not proceed to the second and third steps of the Pointes analysis.

The Court was reluctant to carry forward the reasoning process required by s. 137.1 on appeal without full argument on the “merits-based hurdle” and the “public interest hurdle,” and in the absence of careful analysis by a motion judge. Therefore, the appeal was allowed and the appellant’s motion was remitted to the Superior Court to be heard by a different judge.


CRIMINAL DECISIONS

R. v. M., 2019 ONCA 1019

[MacPherson, Sharpe and Zarnett JJ.A.]

Counsel:

KM, in person

Ian Smith, duty counsel

Benita Wassenaar, for the respondent

Keywords: Criminal Law, Weapons Offence, R. v. Weare, (1993) CCC (3d) 494

R. v. B., 2019 ONCA 1020

[MacPherson, Sharpe and Zarnett JJ.A.]

Counsel:

MB, in person

Ian Smith, duty counsel

Jessica Smith Joy, for the respondent

Keywords: Criminal Law, Assault, Identification Evidence

R. v. G.H., 2020 ONCA 1

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

Counsel:

Catriona Verner, for the appellant

Joanne K Stuart, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Interference, Incest, Jury Instructions, Evidence, Rule in Browne v. Dunn, Prior Inconsistent Statements, Cross-Examination, Credibility, Adverse Inferences, Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.), R. v. L.L., 2009 ONCA 413, R. v. T.M., 2014 ONCA 854, leave to appeal refused, [2015] S.C.C.A. No. 110, Deacon v. The King, [1947] S.C.R. 531, McInroy and Rouse v. R., [1979] 1 S.C.R. 588, R. v. Mannion, [1986] 2 S.C.R. 272, R. v. Squire, [1977] 2 S.C.R. 13, R. v. Bevan, [1993] 2 S.C.R. 599, Colpitts v. The Queen, [1965] S.C.R. 739, Wildman v. The Queen, [1984] 2 S.C.R. 311


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.