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Good afternoon.

Curiously, there was only one substantive civil decision of the Court of Appeal this week. In Nolet v Fischer, the Court of Appeal applied the principle of statutory interpretation expressio unius est exclusio alternius (to express one thing is to exclude another) in determining that the Occupiers’ Liability Act does not preclude one occupier of a premises from having a duty of care towards another occupier of the same premises.

Until next week,

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Nolet v Fisher , 2020 ONCA 155

Keywords: Torts, Negligence, Occupiers’ Liability, Duty of Care, Statutory Interpretation, Expressio unius est exclusio alternius, Occupiers’ Liability Act, RSO 1990, c O2

Short Civil Decisions

Van Nispen v McCarron & Chobotiuk Financial Services Inc, 2020 ONCA 146 (Appeal Book Endorsement)

Keywords: Civil Procedure, Summary Judgment, Leave to Appeal, Fresh Evidence, Rules of Civil Procedure, Rule 39.02

Hydroclave Systems Corp v Gammon, 2020 ONCA 147 (Appeal Book Endorsement)

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, ss 5(1)(a)(iii), (iv)

Temple v Moorey, 2020 ONCA 148 (Appeal Book Endorsement)

Keywords: Civil Procedure, Summary Judgment, Rules of Civil Procedure, Rule 37.14(1)(b)

2503257 Ontario Ltd v 2505304 Ontario Inc (Good Guys Gas Bar), 2020 ONCA 149

Keywords: Civil Procedure, Appeals, Jurisdiction, Real Property, Commercial Tenancies, Vacant Possession, Commercial Tenancies Act, RSO 1990, C L7, s78(1)

Criminal Decisions

R v D, 2020 ONCA 145

Keywords: Criminal Law, Drug Offences, Evidence, Burden of Proof, Canadian Charter of Rights and Freedoms, s 8, R v Thompson, 2015 ONCA 800, R v Dunstan, 2017 ONCA 432

R v Y, 2020 ONCA 150

Keywords: Criminal Law, Manslaughter, Sentencing, R v Lacasse, 2015 SCC 64, R v Araya, 2015 ONCA 854

R v K, 2020 ONCA 151

Keywords: Criminal Law, Second Degree Murder, Self-Defence, Jury Instructions, Opinion Evidence

R v K, 2020 ONCA 157 (Publication Ban)

Keywords: Criminal Law, Personal Injury Offences, Domestic Abuse, Dangerous Offenders, Evidence, Similar Facts

R v F, 2020 ONCA 158 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Jury Instructions

R v B, 2020 ONCA 154 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Administering a Noxious Substance, Sentencing, R v Kienapple, [1975] 1 SCR 729

R v H, 2020 ONCA 156 (Appeal Book Endorsement)

Keywords: Criminal Law, Abandoned Appeal

Ontario Review Board Decisions

A (Re), 2020 ONCA 152

Keywords: Ontario Review Board, Arson, Not Criminally Responsible

F (Re), 2020 ONCA 153

Keywords: Ontario Review Board, Assault, Not Criminally Responsible, Detention Order, Criminal Code, RSC 1985, c C-46, s 672.54(a), 672.78(1)(a)

H (Re), 2020 ONCA 161

Keywords: Ontario Review Board, Conditional Discharge, New Hearing


CIVIL DECISIONS

Nolet v Fischer, 2020 ONCA 155

[Feldman, Fairburn, and Jamal JJA]

Counsel:

JP McCoy, for the appellant

C Leddy, for the respondent

Keywords: Torts, Negligence, Occupiers’ Liability, Duty of Care, Statutory Interpretation, Expressio unius est exclusio alternius, Occupiers’ Liability Act, RSO 1990, c O2

facts:

The appellant was moving out of the home he shared with the respondent after their relationship had ended when he tripped and fell on the sidewalk, injuring his left ankle. He sued the respondent for damages under theOccupiers’ Liability Act. The respondent successfully moved for summary judgment dismissing the claim.

issues:

1. Did the motion judge err in her interpretation of the Occupiers’ Liability Act?

2. Did the motion judge err in finding there was no breach of the duty of care?

3. Did the motion judge err by ignoring binding precedent that a trip ledge is a hazard?

4. Did the motion judge err in failing to provide sufficient reasons for her credibility findings?

5. Did the motion judge err in failing to allow the parties to make submissions on costs?

holding:

Appeal dismissed.

reasoning:

1. Yes. The first issue raised on appeal was whether the motion judge erred in law by finding that under the Act, one occupier of premises is precluded from suing another occupier of the same premises, or that an occupier cannot be a person “entering on the premises” to whom the other occupier owes a duty of care.

An Occupier Can Owe a Duty to another Occupier

Despite her finding to the contrary, the Actdoes not preclude one occupier from suing another occupier or negate the duty of care owed by an occupier to another occupier when that occupier enters on the premises. First, the term “persons entering on the premises” is not defined in the Actand there is nothing therein to suggest that such persons cannot also be occupiers. Second, the temporal scope of the duty of care that extends over the time “while on the premises” also indicates that the duty is owed to other occupiers. Third, the Act contains a number of exclusions from the duty of care, none of which exclude other occupiers, and the statutory interpretation principle of expressio unius est exclusio alternius(to express one thing is to exclude another) applies. The lack of relevant jurisprudence does not undermine the proper interpretation of the Act because there are several explanations for why such jurisprudence does not exist. The appeal was nonetheless dismissed on the alternative ground articulated by the motion judge as discussed in #2 below, that the respondent did not breach her duty of care.

2. No. The duty of care owed by an occupier to a person who enters on the premises is “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises…are reasonably safe while on the premises.” The duty is to take reasonable care – it is not absolute. While the motion judge did not state explicitly why the respondent met her duty of care, it was clear to the Court from her reasons that she found that the appellant had not proved that the respondent failed to “take such care as in all the circumstances of the case is reasonable” to see that the condition of the sidewalk was reasonably safe, a conclusion that was reasonably open to the motion judge.

3. No. The cases cited by the respondent do not stand for the holding which the respondent alleges.

4. No. There was no specific finding on credibility.

5. No. The motion judge received a costs outline from both parties.


SHORT CIVIL DECISIONS

Van Nispen v McCarron & Chobotiuk Financial Services Inc, 2020 ONCA 146 (Appeal Book Endorsement)

[Simmons, van Rensburg, and Harvison Young JJA]

Counsel:

S Sands, for the appellant

L Hansen, for the respondents

Keywords: Civil Procedure, Summary Judgment, Leave to Appeal, Fresh Evidence, Rules of Civil Procedure,Rule 39.02

Hydroclave Systems Corp v Gammon, 2020 ONCA 147 (Appeal Book Endorsement)

[Simmons, van Rensburg, and Harvison Young JJA]

Counsel:

S Bieber and M Darcy, for the appellants

RJ Reynolds, for the respondent

Keywords: Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Limitations Act, 2002, SO 2002, c 24, Sched B, ss 5(1)(a)(iii), (iv)

Temple v Moorey, 2020 ONCA 148 (Appeal Book Endorsement)

[Simmons, van Rensburg, and Harvison Young JJA]

Counsel:

T Gleason, for the appellants

M Maher, for the respondents

Keywords: Civil Procedure, Summary Judgment, Rules of Civil Procedure, Rule 37.14(1)(b)

2503257 Ontario Ltd v 2505304 Ontario Inc (Good Guys Gas Bar), 2020 ONCA 149

[Roberts, Zarnett, and Jamal JJA]

Counsel:

B Fromstein and AF Longo, for the respondent (appellant)

B Romano and J Nussbaum, for the applicants (respondent on appeal)

Keywords: Civil Procedure, Appeals, Jurisdiction, Real Property, Commercial Tenancies, Vacant Possession, Commercial Tenancies Act, RSO 1990, C L7, s78(1)


CRIMINAL DECISIONS

R v D, 2020 ONCA 145

[Benotto, Huscroft, and Jamal JJA]

Counsel:

F Addario and W Dutcher-Walls, for the appellant

JDM Clark, for the respondent

Keywords: Criminal Law, Drug Offences, Evidence, Burden of Proof, Canadian Charter of Rights and Freedoms, s 8, R v Thompson, 2015 ONCA 800, R v Dunstan, 2017 ONCA 432

R v Y, 2020 ONCA 150

[Hourigan, Miller, and Nordheimer JJA]

Counsel:

HL Krongold, for the appellant

H Freeman, for the respondent

Keywords: Criminal Law, Manslaughter, Sentencing, R v Lacasse, 2015 SCC 64, R v Araya, 2015 ONCA 854

R v K, 2020 ONCA 151

[Strathy CJO, Doherty, and Tulloch JJA]

Counsel:

S Reid, for the appellant

M Lacy and J Wilkinson, for the respondent

Keywords: Criminal Law, Second Degree Murder, Self-Defence, Jury Instructions, Opinion Evidence

R v K, 2020 ONCA 157 (Publication Ban)

[Watt, Pardu, and Roberts JJA]

Counsel:

B Vandebeek, for the appellant

A Hrybinsky, for the respondent

Keywords: Criminal Law, Personal Injury Offences, Domestic Abuse, Dangerous Offenders, Evidence, Similar Facts

R v F, 2020 ONCA 158 (Publication Ban)

[Watt, Pardu, and Roberts JJA]

Counsel:

NA Xynnis, for the appellant

C Tier, for the respondent

Keywords: Criminal Law, Sexual Assault, Jury Instructions

R v B, 2020 ONCA 154 (Publication Ban)

[Doherty, Miller, and Fairburn JJA]

Counsel:

J Shime and B EizingaCheng, for the appellant

C Tier, for the respondent

Keywords: Criminal Law, Sexual Assault, Administering a Noxious Substance, Sentencing, R v Kienapple, [1975] 1 SCR 729

R v H, 2020 ONCA 156 (Appeal Book Endorsement)

[Watt, Pardu, and Roberts JJA]

Counsel:

CS White, for the appellant

T Gilliam, for the respondent

Keywords: Criminal Law, Abandoned Appeal


ONTARIO REVIEW BOARD DECISIONS

A (Re), 2020 ONCA 152

[Simmons, Watt, and Miller JJA]

Counsel:

M Perez, for the appellant

S Horgan, for the Attorney General of Ontario

Keywords: Ontario Review Board, Arson, Not Criminally Responsible

F (Re), 2020 ONCA 153

[Benotto, Huscroft, and Jamal JJA]

Counsel:

A Szigeti, for the appellant

M Petrie, for the respondent, Attorney General of Ontario

JE Blackburn, for the respondent, the Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Assault, Not Criminally Responsible, Detention Order, Criminal Code, RSC 1985, c C-46, s 672.54(a), 672.78(1)(a)

H (Re), 2020 ONCA 161

[Watt, Pardu, and Roberts JJA]

Counsel:

A Menchynski, for the appellant

G MacDonald, for the respondent, Attorney General of Ontario

Keywords: Ontario Review Board, Conditional Discharge, New Hearing


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.