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Good afternoon.

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

The outcome in Austin v. Bell Canada, a class proceeding, hinged on the placement of a comma in the Bell Canada pension plan. The issue was whether Bell was entitled to round the CPI used to calculate annual cost of living increases to the nearest two decimal points. The appropriate contractual method of rounding had a $10 million impact in only one year, and a $100 million impact over the long-term. Bell succeeded on a motion for summary judgment in having the class action dismissed. However, the Court of Appeal not only set aside the dismissal, but granted summary judgment against Bell in favour of the class.

Other topics covered this week included contractual interpretation in the joint venture context, mortgage enforcement, the enforceability of an equipment lease whose onerous terms were not brought to the attention of the contracting party, the stay of a vesting order pending appeal, the (almost) jury nullification as a result of an overly inquisitive jury foreman who conducted his own legal research on the MVA fault determination rules under the Insurance Act (the rules were inapplicable to the determination of fault), and adjournments in the Anti-SLAPP context (the 60-day requirement is not a hard cap on time within which to hear the motion).

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

All-Terrain Track Sales and Services Ltd. v. 798839 Ontario Limited, 2020 ONCA 129

Keywords: Contracts, Interpretation, Real Property, Mining Rights, Joint Venture Agreements, 798839 Ontario Ltd. v. Platt, 2016 ONCA 488, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622

The Energy Credit Union Limited v. Radwan, 2020 ONCA 136

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Summary Judgment

M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134

Keywords: Contracts, Real Property, Specific Performance, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, Rule 63.01, City Commercial Realty (Canada) Ltd v. Backich, [2005] O.J. No. 6443 (CA), RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 S.C.R. 311

Amorosi v. Barker, 2020 ONCA 144

Keywords: Civil Procedure, Anti-SLAPP, Motions, Adjournments, Cross-Examination, Courts of Justice Act, s 137.1(4)(b), 137(2)

MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139

Keywords: Contracts, Equipment Leases, Enforceability, Termination Clauses, Onerous Provisions, Tilden Rent-A-Car Co. v. Clendenning (1976), 18 O.R. (2d) 601 (C.A.)

Patterson v. Peladeau, 2020 ONCA 137

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Mistrials, Jury Nullification, Extrinsic Evidence, Jury Charges, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 170(12), Fault Determination Rules, R.R.O. 1990, Reg. 668, R. v. Pannu, 2015 ONCA 677

Austin v. Bell Canada , 2020 ONCA 142

Keywords: Contracts, Interpretation, Contra Proferentem, Pension Plans, Class Proceedings, Summary Judgment, Class Proceedings Act, 1992, S.O. 1992, c. 6, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Housen v. Nikolaisen, 2002 SCC 33, Dinney v. Great-West Life Assurance Co., 2009 MBCA 29, Waxman v. Waxman (2004), 186 O.A.C. 201, Scanlon v. Castlepoint Development Corp. (1992), O.R. (3d) 744

Criminal Decisions

R. v. L., 2020 ONCA 128

Keywords: Criminal Law, Firearm Offences, Possession of a Prohibited Device, Drug Offences, Possession of Marijuana, Possession of Cocaine for the Purpose of Trafficking, Possession of Proceeds of Crime, Actus Reus, Mens Rea, Evidence, Expert Evidence, Admissibility, Sentencing, Criminal Code, ss. 4(3), 4(3)(a)(ii), 4(3)(b), 21(1)(b)-(c), 21(2), 84(1), 92(1), 92(2), 95(1), 655, 686(1)(a)(i), Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462, R. v. R.P., 2012 SCC 22, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15, R. v. Burns, [1994] 1 S.C.R. 656, R. v. Sinclair, 2011 SCC 40, Corbett v. The Queen, [1975] 2 S.C.R. 275, R. v. Wu, 2017 ONCA 620, R. v. Beaudry, 2007 SCC 5, R. v. Villaroman, 2016 SCC 33, R. v. Smith, 2016 ONCA 25, R. v. Morin, [1988] 2 S.C.R. 345, Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), R. v. Bagshaw, [1972] S.C.R. 2, R. v. Mohan, [1994] 2 S.C.R. 9, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Sekhon, 2014 SCC 15, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. J.-L.J., 2000 SCC 51, R. v. Potts, 2018 ONCA 294, R. v. Morelli, 2010 SCC 8, R. v. Beaver, [1957] S.C.R. 531, R. v. Watson, 2011 ONCA 437, R. v. Lincoln, 2012 ONCA 542, United States of America v. Dynar, [1997] 2 S.C.R. 462, R. v. Williams, 2003 SCC 41, R. v. Briscoe, 2010 SCC 13, Sansregret v. The Queen, [1985] 1 S.C.R. 570, R. v. Eastgaard, 2011 ABCA 152, aff’d 2012 SCC 11, R. v. Hunter, 2016 BCCA 94, Re Chambers and the Queen (1985) 20 C.C.C. (3d) (Ont CA), R. v. Pham (2005) 203 C.C.C. (3d) 326 (Ont CA), R. v. Boudreault, 2018 SCC 58

R. v. G.W. (Publication Ban), 2020 ONCA 130

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching

R. v. J.J. (Publication Ban), 2020 ONCA 138

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Admissibility, Prior Inconsistent Statements

R. v. K.V. (Publication Ban), 2020 ONCA 131

Keywords: Publication Ban, Criminal Law, Sexual Offences, Minors, Appeals, Perfection, Extension of Time, Criminal Code, s 276, Rules of Professional Conduct of the Law Society of Ontario

R. v. R., 2020 ONCA 132

Keywords: Criminal Law, Conspiracy to Kidnap, Conspiracy to Commit Sexual Assault, Conspiracy to Commit Murder, Evidence, Corroboration, Witnesses, Credibility, Reliability

R. v. S., 2020 ONCA 133

Keywords: Criminal Law, Domestic Violence, Assault Causing Bodily Harm, Sentencing, Propensity Evidence

R. v. M. (Publication Ban), 2020 ONCA 141

Keywords: Publication Ban, Criminal Law, Sexual Assault, Administering a Noxious Substance, Bail Pending Appeal, Jury Selection, Peremptory Challenges, Bill C-75, Criminal Code, ss. 679(3), 686, R. v. Chouhan, 2020 ONCA 40, R. v. Oland, 2017 SCC 17, R. v. Iraheta, 2018 ONCA 229, R. v. Fainacci (1993), 86 C.C.C. (3d) 32 (CA), R. v. Esseghaier and Jaser, 2019 ONCA 672

R. v. J.-E. M.-C. (Publication Ban), 2020 ONCA 140

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Prior Statements, Youth Criminal Justice Act, S.C. 2002, c. 1

Ontario Review Board Decisions

H. (Re), 2020 ONCA 143

Keywords: Ontario Review Board, Criminal Law, Uttering Death Threats, Not Criminally Responsible


CIVIL DECISIONS

All-Terrain Track Sales and Services Ltd. v. 798839 Ontario Limited, 2020 ONCA 129

[Pepall, Pardu and Paciocco JJ.A.]

Counsel:

Donald Rollo and Marc Chaput, for appellants
Steve Gearing, for the respondent

Keywords: Contracts, Interpretation, Real Property, Mining Rights, Joint Venture Agreements, 798839 Ontario Ltd. v. Platt, 2016 ONCA 488, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622

facts:

The appellants are judgment creditors of 798839 Ontario Limited (“39”). The appellants sued the respondent, asserting that 39 had successfully exercised an option contained in a joint venture agreement with the respondent to acquire an interest in the Pardee Mining Development. The appellants hoped to obtain part of a revenue stream originating from that development, in satisfaction of the judgment against 39. The summary judgment motion judge concluded that 39 had not satisfied the contractual prerequisites necessary to acquire an interest in the mining development.

issues:

(1) Did the motion judge err by failing to have regard to the factual matrix surrounding the formation of the contract?

(2) Did the motion judge err in her interpretation of the contract?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge accepted the parties’ agreement as to the amounts 39 advanced to JBC and the amounts expended on the Pardee claims, mirrored in the other litigation’s findings. However, the appellants argued that the motion judge somehow failed to have sufficient regard to other findings made in that litigation. The Court did not agree. The respondent was only peripherally involved in the other litigation and was not a party to the four contracts interpreted in that litigation. The Pardee joint venture agreement with 39 was not interpreted in that litigation. There was no indication that the contracts in the other litigation formed part of a composite whole with the Pardee joint venture agreement. As pointed out by Blair J.A. in the appeal from the other litigation, the appeal was confined to the issue of ownership of the Kipling claims, a matter in which the respondent had no interest.

The Court iterated that the starting point for contractual interpretation is the language of the agreement. Further, the factual matrix should “consist only of objective evidence of the background facts at the time of the execution of the contract, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting”. The Court was not persuaded that any other aspect of the factual matrix as expressed in the other litigation should have been considered by the motion judge but was not.

(2) No. The Court affirmed that the key issue to determine in contractual interpretation is the “intent of the parties and the scope of their understanding”. The motion judge analyzed the language used by the parties as a whole and gave the words their plain meaning. There was little evidence of the surrounding circumstances known to the parties at the time they entered the agreement. According to JBC’s management contract with 39, JBC required 39’s consent before incurring expenditures. Presumably, 39 had good reasons related to its own self-interest to agree to divert $360,687 to the Kipling project, rather than expend it on the Pardee project. The Court held that the motion judge’s interpretation of the contract was rational, rooted in the language of the contract and the evidence before her. There was no basis to depart from the deference owed to her interpretation.


The Energy Credit Union Limited v. Radwan, 2020 ONCA 136

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

David Conn, for the appellant
Oren Chaimovitch, for the respondents

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Summary Judgment

facts:

The appellants owned a home on which they granted the respondent an on-demand mortgage in the form of a home equity line of credit. Later, the respondents refinanced the mortgage and increased the amount of their equity line of credit, both of which were noted as being repayable on-demand. The appellants failed to meet the payment obligations under the equity line of credit and the mortgagee made a demand for payment in full. The mortgagee commenced an action for the amount due and possession of the property and were granted summary judgment.

issues:

(1) Did the motion judge err in failing to address the appellants’ evidence that they did not sign a set of standard charge terms and one of the appellant’s level of sophistication as a borrower?

(2) Did the motion judge give inadequate reasons or provide insufficient insight into how the legal conclusion was reached?

(3) Did the motion judge err by failing to consider important issues of credibility?

holding:

Appeal dismissed.

reasoning:

(1) No. The terms of the refinanced credit facility and mortgage were not novel to the appellants because they had previous experience with similar terms. One of the appellants was the CEO of a credit union at the time of refinancing. There was no suggestion of undue influence or fraud.

(2) No. The motion judge clearly disclosed the basis for his decision and the Court found no palpable or overriding error in the findings.

(3) No. The appellants admitted that the mortgage fell into arrears.


M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134

[Paciocco J.A. (Motions Judge)]

Counsel:

Robert S Choi and Gina Rhodes for the appellant, responding party on M51177, and moving party on M51186
Elliot Birnboim, for the respondent, moving party on M51177, and responding party on M51186

Keywords: Contracts, Real Property, Specific Performance, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, Rule 63.01, City Commercial Realty (Canada) Ltd v. Backich,[2005] O.J. No. 6443 (CA), RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 S.C.R. 311

facts:

The appellant, 2088556 Ontario Inc. (“208 Ontario”), as vendor, and the respondent, M & M Homes Inc. (“M & M Homes”), as purchaser, entered into an agreement of purchase and sale (“APS”) relating to development land. The sale did not close, and litigation ensued. In the trial decision appealed from, the respondent purchaser, M & M Homes, prevailed, receiving an order for specific performance to be enforced through a vesting order (the “vesting order”), and costs on a substantial indemnity basis. 208 Ontario appealed both the vesting order and the costs order.

In motion M51177, M & M Homes moved to “set aside” a certificate of stay relating to the costs order that was issued by the registrar of the Court, pursuant to Rule 63.01 of the Rules of Civil Procedure.

In motion M51186, 208 Ontario moved for a stay of the vesting order and the costs order pending appeal.

issues:

(1) Should the certificate of stay for the costs order be set aside?

(2) Should the vesting order be stayed pending appeal?

holding:

Motion 1 dismissed. Motion 2 granted.

reasoning:

(1) No. The costs order itself is an order for the payment of money within the meaning of Rule 63.01 and is automatically stayed under that rule re: City Commercial Realty (Canada) Ltd. v. Backich. The fact that the costs order was enforceable by way of an abatement was immaterial.

(2) Yes. The Court applied the factors identified in RJR-MacDonald Inc v Canada (Attorney General) for assessing whether an interlocutory injunction should be granted and held that not staying the vesting order had the material risk of the land being transferred by the respondent and putting it out of reach of restoration if the appellant was successful on appeal. This risk satisfied both the balance of convenience and the irreparable harm factors from RJR-MacDonald Inc v Canada (Attorney General).


Amorosi v. Barker, 2020 ONCA 144

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

Jordan Goldblatt, for the appellant
Iain AC MacKinnon, for the respondent

Keywords: Civil Procedure, Anti-SLAPP, Motions, Adjournments, Cross-Examination, Courts of Justice Act, s 137.1(4)(b), 137(2)

facts:

The following judgment was rendered on two civil procedure issues with the facts omitted and the presiding justices deferring to the court below regarding the factual matrix.

The appellant argued that an adjournment should not have been granted because it effectively deprived the motion judge of jurisdiction to hear the motion by extending the hearing of the motion beyond the 60-day time limit referred to in the Anti-SLAPP provisions in s. 137.2(2) of the Courts of Justice Act.

The second issue, that is the balancing of the competing interests under s. 137.1(4)(b), engages a motion judge’s discretion. There are clearly competing interests which must be examined.

issues:

(1) Did the motion judge err in granting an adjournment of the motion to allow for cross-examination of the appellant (plaintiff) on his affidavit filed on the motion?

(2) Did the motion judge err in the balancing of the competing interests required under s. 137.1(4)(b) of the Courts of Justice Act?

holding:

Appeal dismissed.

reasoning:

(1) No. The language of the subsection permits the interpretation that 60 days refers to the commencement of the motion. The practicalities of litigation in the province demand that interpretation. Clearly, the Anti-SLAPP legislation intended that these motions should be heard expeditiously. Equally clearly, the legislature did not intend to impose an arbitrary and unbending limit on the time needed to hear and determine the motion. The court found that it does not take much imagination to think of fact situations in which a 60-day hard cap would lead to wasting of important resources and unfair results.

(2) No. The court found that the motion judge clearly examined the competing interests. The Court has previously addressed the exercise of the discretion under that provision in a series of cases. In doing so, the Court has recognized that different judges may well exercise their discretion differently in given cases. The Court shows deference to those determinations and found no error in the motion judge’s consideration of the evidence in this case.


MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139

[MacPherson, Sharpe and Jamal JJ.A.]

Counsel:

Amer Mushtaq, for the appellant
Ron Aisenberg, for the respondent, MacQuarie Equipment Finance (Canada) Limited
No one appearing for the respondent, Leasecorp Capital Inc.

Keywords: Contracts, Equipment Leases, Enforceability, Termination Clauses, Onerous Provisions, Tilden Rent-A-Car Co. v. Clendenning (1976), 18 O.R. (2d) 601 (C.A.)

facts:

Durham Drug Store (“Durham Drug”) operates a pharmacy run by its principal, a pharmacist (“Principal”). In late 2015, a representative of Medview (“Representative” or “Respondent”) proposed a business arrangement between Medview and Durham Drug whereby Durham Drug engaged Medview to supply a telemedicine studio in the pharmacy to provide remote services. Medview then contacted Leasecorp Capital Inc. (“Leasecorp”), an equipment lease broker, to lease Durham the equipment. Leasecorp met with Principal to complete a credit application, which was approved the next day.

Principal’s evidence was that she thought Leasecorp was actually a Medview representative and that he said he was “sent by Medview”. Leasecorp’s evidence was that he clearly represented himself as being the equipment lessor.

Medview subsequently emailed Principal a copy of the written Master Service Agreement (“MSA”) between Medview and Durham Drug which set out the terms of Medview’s proposed services for review and signing. This MSA was to have the same termination date as the equipment lease. MSA contained broad termination provision.

The following day, Leasecorp visited Principal, but instead of bringing a copy of the MSA, he brought a proposed Lease between Macquarie and Durham Drug. Principal was busy with customers that day and, thus, did not read the Lease brought to her. She believed it was the MSA. Principal signed it and initialed each page. Durham Drug then made payments to Macquarie for a year. It ceased payments in February 2017 when it learned that Medview had failed to disclose that its services lacked the necessary regulatory approvals. As a result, Medview ceased offering the services.

Macquarie then contacted Durham Drug. Principal advised Macquarie that she had contacted Medview and it had advised her that the telemedicine equipment would be picked up. Macquarie responded that it had nothing to do with any arrangement she had with Medview, and Durham Drug would be responsible for any shortfall if she sold the equipment to Medview. Principal told Macquerie it could come pick up the equipment and sort out the issue with Medview. Only at this point did Macquerie provide Durham Drug with a copy of the Lease.

Macquarie then sued Durham Drug Store, claiming $90,057.14 under the Lease and for possession of the leased equipment. Motion judge concluded that because the Lease was signed by Principal, it was enforceable against Durham Drug. Durham Drug appealed that decision.

issues:

(1) Did the motion judge err in finding that the Lease was enforceable against Durham Drug?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

(1) Yes. While the motion judge was entitled to find that Macquerie and Leasecorp did not participate or have knowledge in the fraud, as well as his finding that the evidence was insufficient to establish that the Lease was an unconscionable agreement, this does not address all issues as to enforceability of the Lease. The Lease also contained a term that purported to eliminate Durham Drug’s ability to terminate or cancel the Lease during its term “for any reason, including equipment failure, damage or loss”. This “no cancellation” provision in the Lease is at odds with the “early termination” provision of the MSA.

The Court of Appeal viewed that the highly unusual circumstances of this case bring it within the principle in Clendenning, which found that a particularly unfair term can render a clause unenforceable absent inadequate notice. In these circumstances, it was not reasonable for Macquarrie to have believed that Principal really assented to the no-cancellation provision of the Lease, which was at odds with the termination provision in the MSA, without having first taken reasonable measures to bring that clause to her attention. Therefore, Durham Drug had the right to terminate lease and return leased equipment to Macquarie upon the default of the respondent, Medview and the no-cancellation provision is unenforceable.


Patterson v. Peladeau, 2020 ONCA 137

[MacPherson, Sharpe and Jamal JJ.A.]

Counsel:

Joseph Y Obagi and Thomas P Connolly, for the appellants
Joseph WL Griffiths and Matthew GT Glass, for the respondent

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Mistrials, Jury Nullification, Extrinsic Evidence, Jury Charges, Highway Traffic Act, R.S.O. 1990, c. H.8, s. 170(12), Fault Determination Rules, R.R.O. 1990, Reg. 668, R. v. Pannu, 2015 ONCA 677

facts:

The appellant was hit by the respondent’s car while he was standing on the road next to his truck. The appellant, together with his wife and daughter, claimed over $4 million against the respondent in respect of his injuries. One of the key issues at trial was the apportionment of liability for the accident. During the jury’s deliberations, the jury asked the court a question that revealed that it may have accessed inappropriate extrinsic information, namely, a provision of the Fault Determination Rules, R.R.O. 1990, Reg. 668, that was irrelevant and inapplicable to this case, but which, if applied, could impact the apportionment of liability. The appellants brought a motion to strike the jury and to proceed with the remainder of the trial by judge alone on the basis that extraneous material had been introduced into the jury room.

The trial judge questioned the jury foreperson, who revealed that he had found the provision on an Ontario government website on the weekend at the beginning of the deliberations, and then shared it with the other jurors. The foreperson also revealed that this was the full extent of the extrinsic information and that no other juror had accessed the internet in relation to the case. Based on these answers, the trial judge dismissed the motion. He was satisfied that he did not need to question the other jurors and the issue could be addressed through responses to the jury’s questions and an appropriate correcting charge, accompanied by a strong warning to the jurors not to conduct any further extrinsic research.

The jury found the appellant 73% contributorily negligent in the collision and the respondent 27% at fault. As a result of the jury’s verdict and assessment of damages, the trial judge awarded judgment to the appellants in the amount of $309,032.34. After the verdict, the appellants moved for a mistrial, again relying principally on the jury foreperson’s inappropriate internet research. The trial judge dismissed the motion.

issues:

(1) Did the trial judge fail to conduct a proper inquiry to determine the nature and scope of the extrinsic information that the jury obtained?

(2) Did the trial judge fail to appropriately analyze the prejudicial effect of the extrinsic information obtained by the jury?

holding:

Appeal dismissed.

reasoning:

(1) No. The appellants asserted that the trial judge misapprehended the evidence by failing to assess the nature and extent of the extrinsic information, thereby denying the appellants the right to know exactly what the jury considered. The finding that only one juror – the foreperson – had accessed the internet and shared information obtained from the internet with the other jurors was based on exchanges which the appellant argued were somewhat equivocal as to whether other laws might also have been researched. The Court held that the trial judge was entitled to believe the juror’s answers and to reach the conclusions he did. The mere possibility that these exchanges may be susceptible to the different inference posited by the appellants did not rise to the high threshold required for appellate intervention based on a misapprehension of the evidence. Therefore, the Court concluded that the trial judge conducted a proper inquiry and did not misapprehend the evidence as to the nature and scope of the extrinsic information reviewed by the jury.

(2) No. The appellants made three points on this issue. First, the appellants asserted that the trial judge failed to consider the prejudicial nature of the extrinsic information and its ability to affect the jury’s verdict. The Court disagreed. The trial judge undoubtedly considered the prejudicial nature of the extrinsic information – that is why he gave the jury a correcting charge.

Second, the appellants asserted that the jury verdict used terminology suggesting a reasonable possibility that the jury applied the Fault Determination Rules, despite the correcting charge. The Court did not accept this submission. The trial judge noted that the jury specified the violation of s. 170(12) of the Highway Traffic Act and while s. 170(12) “does not contain the word ‘illegal’, illegal is a term of general usage connoting a contravention or violation of the law and is not a concept specific to the Fault Determination Rules.” Moreover, the trial judge noted that had the jury applied the Fault Determination Rules, it would have found the appellant 100% at fault.

Finally, the appellants asserted that the correcting charge was inadequate to dispel the prejudice arising from the jury being provided with the Fault Determination Rules. The Court did not give effect to this argument. Absent legal error, misapprehension of the evidence, or patent unreasonableness, an appeal court should accord deference to a trial judge’s decision to provide a correcting charge rather than declare a mistrial: R. v. Pannu, 2015 ONCA 677. The Court saw no basis to intervene in the trial judge’s finding as to the efficacy of the correcting charge because the trial judge was very well positioned to make the finding, having presided over the trial that included eight weeks of evidence and having seen the jury’s engagement and diligence first hand.


Austin v. Bell Canada, 2020 ONCA 142

[MacPherson, Sharpe and Jamal JJ.A.]

Counsel:

Mark Zigler, Jonathan Ptak, and Garth Myers, for the appellant
Dana Peebles, for the respondents

Keywords: Contracts, Interpretation, Contra Proferentem, Pension Plans, Class Proceedings, Summary Judgment, Class Proceedings Act, 1992, S.O. 1992, c. 6, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Housen v. Nikolaisen, 2002 SCC 33, Dinney v. Great-West Life Assurance Co., 2009 MBCA 29, Waxman v. Waxman (2004), 186 O.A.C. 201, Scanlon v. Castlepoint Development Corp. (1992), O.R. (3d) 744

facts:

The appellant, a long time Bell Canada employee, brought a class proceeding on behalf of approximately 35,000 pensioners who were all beneficiaries of the common Pension Plan administered by the respondents which are all part of the Bell corporate family. The motion judge certified the proceeding under the Class Proceedings Act. It was common ground that the matter was suitable for summary judgment. The motion judge concluded that Bell was entitled to round the Pension Index to two decimal points and granted summary judgment dismissing the action. The motion judge’s ruling and the appeal turned on two provisions dealing with the annual indexing of benefits. The first was the definition of Pension Index in s. 1.29 of the Plan and the second provision was s. 8.7, which governed the calculation of the annual indexation increase.

issues:

(1) Did the motion judge err in calculating the cost-of-living adjustment under the Plan?

(2) Did the motion judge err by failing to consider the contra proferentem rule?

holding:

Appeal allowed.

reasoning:

(1) Yes. The Court started by examining the language of s. 1.29. The Court agreed with the appellant and the motion judge that s. 1.29 states that both the annual percentage increase and the Consumer Price Index are to be determined by Statistics Canada.

The Court did not accept Bell’s submission that adhering to the one-decimal rounding policy was undermined by the expert’s admission on cross-examination that Statistics Canada follows the one-decimal rounding policy “for its own purposes” and “is not in the business of telling people how to use [its] data.” The policy Bell adopted for the Plan was a matter for negotiation between Bell and its employees.

The Court agreed with the motion judge that the language the parties have adopted in s. 1.29 points in the direction of applying Statistics Canada’s calculation of the annual percentage increase of the Consumer Price Index. That interpretation was supported by use of the comma indicating that the phrase “as determined by Statistics Canada” modified both the phrases “Consumer Price Index” and “annual percentage increase”.

In the Court’s view, having regard to the grammatical meaning of s. 1.29 and the evidence regarding accepted statistical conventions for rounding, a strained interpretation of s. 1.29 would be required to make it mean that Statistics Canada determines only the increase in the Consumer Price Index and leaves it to Bell to adopt a different rounding policy to determine the Pension Index.

The Court then read s. 1.29 in the context of the Plan as a whole, considering it in conjunction with other relevant clauses. The crucial point for the motion judge was his conclusion that accepting the Statistics Canada one-decimal rounding policy would render s. 8.7(iv) “meaningless” or “partly meaningless”. This was either (or both) a palpable and overriding error of fact or an extricable error of law.

The palpable and overriding error of fact was that the motion judge’s conclusion ignored the uncontradicted evidence that using the Statistics Canada one-decimal rounding policy would frequently produce a three-decimal figure in the calculation of the annual percentage increase for recently retired pensioners under s. 8.7(iii), and that the two-decimal rounding provision on s. 8.7(iv) applied and therefore had meaning. If the Court was to accept Bell’s submission that the motion judge only meant “meaningless” in relation to s. 8.7(ii), the Court would be left with his conclusion that s. 8.7(iv) would be rendered “partly meaningless”. This was an extricable error of law. A contractual provision either has a meaning or it does not and courts strive to give all contractual provisions meaning and to avoid an interpretation of one provision that would render another meaningless or redundant.

In this case, the rounding provision in s. 8.7(iv) would not be rendered ineffective by giving s. 1.29 its plain grammatical meaning. The plain grammatical reading of s. 1.29 was readily reconcilable with the rounding method specified by s. 8.7(iv) with respect to the other provisions of s. 8.7 and the plain grammatical meaning should be followed.

(2) Yes. The motion judge made an extricable error of law by failing to consider the contra proferentem rule. The Plan was drafted by Bell without meaningful participation by the pensioners who are a vulnerable group in relation to Bell. Contra proferentem is regularly applied to resolve ambiguities in pension documents in favour of pensioners.

In the Court’s view, the Plan was not ambiguous and, for the reasons above, the appellant’s interpretation was the correct one. The Court therefore did not find it necessary to resort to contra proferentem. Having found the wording to be “awkward”, the motion judge should have applied the contra proferentem doctrine, and ruled that given the ambiguity, the interpretation favouring the pensioners should prevail. His failure to do so represented an extricable error of law.


CRIMINAL DECISIONS

R. v. L., 2020 ONCA 128

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

Christopher R Murphy, for the appellant
Katie Doherty, for the respondent

Keywords: Criminal Law, Firearm Offences, Possession of a Prohibited Device, Drug Offences, Possession of Marijuana, Possession of Cocaine for the Purpose of Trafficking, Possession of Proceeds of Crime, Evidence, Expert Evidence, Admissibility, Proof of Possession, Personal Possession, Constructive Possession, Actual Knowledge, Doctrine of Wilful Blindness, Unreasonable Verdicts, Sentencing, Victim Surcharge, Acquittal, Criminal Code, ss. 4(3), 4(3)(a)(ii), 4(3)(b), 21(1)(b)-(c), 21(2), 84(1), 92(1), 92(2), 95(1), 655, 686(1)(a)(i), Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted, SOR/98-462, R. v. R.P., 2012 SCC 22, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15, R. v. Burns, [1994] 1 S.C.R. 656, R. v. Sinclair, 2011 SCC 40, Corbett v. The Queen, [1975] 2 S.C.R. 275, R. v. Wu, 2017 ONCA 620, R. v. Beaudry, 2007 SCC 5, R. v. Villaroman, 2016 SCC 33, R. v. Smith, 2016 ONCA 25, R. v. Morin, [1988] 2 S.C.R. 345, Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), R. v. Bagshaw, [1972] S.C.R. 2, R. v. Mohan, [1994] 2 S.C.R. 9, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Sekhon, 2014 SCC 15, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. J.-L.J., 2000 SCC 51, R. v. Potts, 2018 ONCA 294, R. v. Morelli, 2010 SCC 8, R. v. Beaver, [1957] S.C.R. 531, R. v. Watson, 2011 ONCA 437, R. v. Lincoln, 2012 ONCA 542, United States of America v. Dynar, [1997] 2 S.C.R. 462, R. v. Williams, 2003 SCC 41, R. v. Briscoe, 2010 SCC 13, Sansregret v. The Queen, [1985] 1 S.C.R. 570, R. v. Eastgaard, 2011 ABCA 152, aff’d 2012 SCC 11, R. v. Hunter, 2016 BCCA 94, Re Chambers and the Queen (1985) 20 C.C.C. (3d) (Ont CA), R. v. Pham (2005) 203 C.C.C. (3d) 326 (Ont CA), R. v. Boudreault, 2018 SCC 58

R. v. G.W. (Publication Ban), 2020 ONCA 130

[Hoy A.C.J.O., Feldman and Gillese JJ.A.]

Counsel:

GW, in person
Delmar Doucette, duty counsel
Jessica Smith Joy, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching

R. v. J.J. (Publication Ban), 2020 ONCA 138

[Lauwers, Trotter and Fairburn JJ.A.]

Counsel:

Jaime Mor, for the appellant
Nicolas de Montigny, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Admissibility, Prior Inconsistent Statements

R. v. K.V. (Publication Ban), 2020 ONCA 131

[Paciocco J.A. (Motions Judge)]

Counsel:

Kristin Bailey, for the moving party
Kevin Rawluk, for the responding party

Keywords: Publication Ban, Criminal Law, Sexual Offences, Minors, Appeals, Perfection, Extension of Time, Criminal Code, s 276, Rules of Professional Conduct of the Law Society of Ontario

R. v. R., 2020 ONCA 132

[Hoy A.C.J.O., Feldman and Gillese JJ.A.]

Counsel:

SR, acting on his own behalf
Amy Ohler for the appellant, MV
Hannah Freeman, for the respondent

Keywords: Criminal Law, Conspiracy to Kidnap, Conspiracy to Commit Sexual Assault, Conspiracy to Commit Murder, Evidence, Corroboration, Witnesses, Credibility, Reliability

R. v. S., 2020 ONCA 133

[Hoy A.C.J.O., Feldman and Gillese JJ.A.]

Counsel:

Amy Ohler for the appellant
Hannah Freeman, for the respondent

Keywords: Criminal Law, Domestic Violence, Assault Causing Bodily Harm, Sentencing, Propensity Evidence

R. v. M. (Publication Ban), 2020 ONCA 141

[MacPherson J.A. (Motions Judge)]

Counsel:

Breana Vandebeek, for the applicant
Jennifer AY Trehearne, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Administering a Noxious Substance, Bail Pending Appeal, Jury Selection, Peremptory Challenges, Bill C-75, Criminal Code, ss. 679(3), 686, R. v. Chouhan, 2020 ONCA 40, R. v. Oland, 2017 SCC 17, R. v. Iraheta, 2018 ONCA 229, R. v. Fainacci (1993), 86 C.C.C. (3d) 32 (CA), R. v. Esseghaier and Jaser, 2019 ONCA 672

R. v. J.-E. M.-C. (Publication Ban), 2020 ONCA 140

[Lauwers, Trotter and Fairburn JJ.A.]

Counsel:

Margaret Bojanowska, for the appellant
Lauren Lindsay, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Prior Statements, Youth Criminal Justice Act, S.C. 2002, c. 1


ONTARIO REVIEW BOARD DECISIONS

H. (Re), 2020 ONCA 143

[Benotto, Huscroft and Jamal JJ.A.]

Counsel:

DH, acting in person
AS, amicus curiae
Philippe Cowle, for the Attorney General of Ontario
Julie Zamprogna, for the Person in Charge of Southwest Centre for Forensic Mental Health Care
Janice Blackburn, for the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, Uttering Death Threats, Not Criminally Responsible


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.