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Good morning.

Please find our summaries of the civil decisions of the Court of Appeal for Ontario for the week of September 21, 2020. There were only three substantive decisions.

Bruno v. Dacosta involved an inmate who sued the Crown after he was assaulted while in detention. The Court ordered a new trial after finding the trial judge’s reasons so insufficient as to preclude any meaningful appellate review. In addition to discussing the importance of meaningful reasons, the Court also took another opportunity to provide some trial practice advice to counsel on the admission and use of joint document books.

Congratulations to our very own Ryan Kniznik, who was substantially successful in representing our client in Levin v. Levin, a family law appeal.

Finally, Walker v. Coldin dealt with access easements for cottage properties.

I hope everyone enjoys the good weather while it lasts, but does so while maintaining appropriate physical distancing. The number of cases is, unfortunately, increasing, but if we all remember to do our part, we can reverse that trend and avoid another lockdown.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Bruno v. Dacosta, 2020 ONCA 602

Keywords: Torts, Negligence, Standard of Care, Crown Liability, Defences, Contributory Negligence, Civil Procedure, Procedural and Natural Justice, Sufficiency Of Trial Reasons,  Evidence at Trial, Exhibits, Joint Document Books, Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Evidence Act, R.S.O. 1990, c. E.23, s. 35, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Nemchin v. Green, 2019 ONCA 634, R. v. Sheppard, 2002 SCC 26, R. v. Dinardo, 2008 SCC 24, Girao v. Cunningham, 2020 ONCA 260

Levin v. Levin, 2020 ONCA 604

Keywords: Family Law, Spousal Support, Child Support, Equalization of Net Family Property, Family Law Rules, O Reg 114/99, rule 18(14), Rados v. Rados, 2019 ONCA 627, Bak v. Dobell, 2007 ONCA 304, Korman v. Korman, 2015 ONCA 578, Fielding v. Fielding, 2015 ONCA 901

Walker v. Coldin, 2020 ONCA 603

Keywords: Real Property, Prescriptive Easements,  Civil Procedure, Remedies, Injunctions, Applications, Factums, Rules of Civil Procedure, Rule 38.09(4), W. (D.) v. White, [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Short Civil Decisions

Vitucci v. Dimankis, 2020 ONCA 601

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06(1)(a)


CIVIL DECISIONS

Bruno v. Dacosta, 2020 ONCA 602

[Lauwers, Brown and Nordheimer JJ.A.]

Counsel:

Ian MacLeod and Robert Trenker, for the appellant

Gregory P. McKenna and Sabrina L. Seibel, for the respondents

Keywords: Torts, Negligence, Standard of Care, Crown Liability, Defences, Contributory Negligence, Civil Procedure, Procedural and Natural Justice, Sufficiency Of Trial Reasons,  Evidence at Trial, Exhibits, Joint Document Books, Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Evidence Act, R.S.O. 1990, c. E.23, s. 35, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Nemchin v. Green, 2019 ONCA 634, R. v. Sheppard, 2002 SCC 26, R. v. Dinardo, 2008 SCC 24, Girao v. Cunningham, 2020 ONCA 260

facts:

The respondent, PB, was an inmate being held at the Niagara Detention Centre (“NDC”). The trial judge found that other inmates at the NDC assaulted the respondent, leaving him with serious personal injuries that he continues to suffer from. The issue before the trial judge was whether the Crown, as represented by the Ministry of Community Safety and Correctional Services, is liable in negligence because NDC employees failed to take reasonable steps to protect the respondent as a vulnerable inmate.

The trial judge found two breaches of the standard of care, but also found that the respondent was contributorily negligent in failing to bring his vulnerability to the attention of NDC employees. The amount of contributory negligence was assessed at 15 percent. The Crown appealed and asked that the action be dismissed, while the respondent cross-appealed and asked that the level of contributory negligence be reduced to zero.

issues:
  1. Are the trial judge’s reasons sufficient to permit a meaningful appellate review?
  2. Did the trial judge err in finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act and case law?
holding:

Appeal allowed.

reasoning:

(1) Are the trial judge’s reasons sufficient to permit a meaningful appellate review?

No. The Court began by exploring the functional purposes for good reasons, noting the principle in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 39 that reasons allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed. The Court then moved on from considering the importance of clear and sufficient reasons in general, to exploring the extent to which appellate courts can appropriately salvage a judgment based on inadequately explained trial reasons.

First, the Court cited various authorities for the principle that a new trial should not be ordered unless the interests of justice plainly require that to be done (Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.); Nemchin v. Green, 2019 ONCA 634) and that the court must find a real prospect “that a substantial wrong or miscarriage of justice has occurred” (Courts of Justice Act, s. 134(6)).

In R. v. Sheppard, 2002 SCC 26, Justice Binnie wrote that where the trial decision is deficient in explaining the result to the parties, but the appeal court is able to do so, the appeal court’s own explanation is sufficient to salvage the judgment. However, where the appeal court is not able to do so, a new trial may be needed. Further, when assessing the trial judge’s reasons for sufficiency, the appeal court must examine the evidence and determine whether the reasons for judgment are, in fact, patent on the record (R. v. Dinardo, 2008 SCC 24).

The Court summarized these authorities by finding that appellate courts usually decline to dig too deeply into the record in order to salvage a decision in three particular instances: where the decision turns on (1) issues of conflicting evidence; (2) evaluations of credibility and reliability; or (3) exercises of discretion that are properly within the purview of a trial judge. The Court then used the second issue (the liability of the Crown) considered in this case merely as a tool to illustrate the application of these principles. Ultimately, the Court concluded that there was genuine uncertainty over whether the trial judge properly understood the correct legal test for liability. Among other things, the Court also found that the trial judge failed to assess credibility and reliability, or set out the chains of reasoning applicable to each issue. Therefore, the judgment could not be salvaged upon examining the record, and a new trial was regrettably ordered.

(2) Did the trial judge err in finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act?

The Court did not reach a direct conclusion on this issue, as it was merely used as a tool to apply the principles listed above pertaining to the sufficiency of trial reasons. The Court did, however, provide a brief review of the law on this issue.

The applicable law in inmate assault cases is that the Ontario Crown can only be held liable for the negligent acts or omissions of an individual correctional officer who, in the course of employment by the Ontario Crown, did or failed to do something, thereby creating a foreseeable risk of harm to the inmate (Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2)); Walters v. Ontario, 2017 ONCA 53). In other words, liability must derive from the actionable negligence of specific correctional officers. On this issue, the Court found ample support for the arguments of both the appellant and the respondents, due to the imprecise language used by the trial judge in his reasons. Therefore, a conclusion on this specific issue could not be provided based on the evidence.
___________________________________________________________________________
Although not an issue specifically raised by the parties, the Court also elected to provide trial practice notices regarding the admission of use of joint document books at trial. The Court cited the recent decision in Girao v. Cunningham, 2020 ONCA 260, although not released until after this case was decided, as a helpful authority on acceptable trial practice.

The Court chose to emphasize three main points that it felt were overlooked by the parties in this case. First, that it is important to remember that any agreement between counsel as to the admissibility of documents is not automatically binding on the trial judge, who remains the ultimate gatekeeper of the evidence. Nevertheless, the parties would be well-advised to enter their agreement with the joint book of documents at the earliest opportunity as a matter of good practice.

Second, the Court lamented the tendency of trial judges in civil cases of ruling all evidence as admissible, subject only to their later assessment of what weight to give to the evidence. On this point the Court echoed the sentiments of Justice Stratas in Teva Canada Ltd. v. Pfizer Canada Inc., 2016 FCA 161, who labelled this practice as legal heresy.

Lastly, reiterating what has also been said in Girao, the Court maintained that good trial practice is to include any written arguments in the trial as lettered exhibits to which the appeal court can have access, if necessary. In this case, important written submissions were omitted from the trial record, and the Court felt that this greatly contributed to the overall disorganized and insufficient nature of the case.


Levin v. Levin, 2020 ONCA 604

[Watt, Trotter and Zarnett JJ.A.]

Counsel:

P. I. Waldmann, for the appellant

Ryan M. Kniznik, for the respondent

Keywords: Family Law, Spousal Support, Child Support, Equalization of Net Family Property, Family Law Rules, O Reg 114/99, rule 18(14), Rados v. Rados, 2019 ONCA 627, Bak v. Dobell, 2007 ONCA 304, Korman v. Korman, 2015 ONCA 578, Fielding v. Fielding, 2015 ONCA 901

facts:

The appellant and respondent had been married for 26 years and had two children. They were unable to resolve financial and property issues, culminating in an eight-day trial that ended unfavourably for the appellant. The appellant argued that the trial judge erred on the issues of spousal support, child support, net family property and costs. The respondent resisted any changes to the decision, except for some minor inaccuracies in two of the trial judge’s calculations.

issues:

Did the trial judge err in:

  1. calculating the appellant’s income?
  2. calculating the respondent’s income?
  3. calculating net family property?
  4. determining the timing of the review date for support?
  5. the costs award?
holding:

Appeal allowed in part.

reasoning:

Credibility Finding

The Court found the trial judge’s reasons to be sound, subject to a few minor calculation errors. Credibility was at the heart of this family law trial. The trial judge found the respondent’s testimony was generally consistent and credible. However, the trial judge found many inconsistencies in the appellant’s testimony. The Court held that a trial judge’s findings of fact, including credibility assessments, are entitled to substantial deference on appeal especially in family law cases. Additionally, the Court stated that imputation of income for support purposes is a discretionary and fact-specific exercise which should be afforded deference.

(1) Did the trial judge err in calculating the appellant’s income?

No. The appellant argued that the trial judge misapprehended the evidence in over-imputing income to him and under-attributing income to the respondent. The Court disagreed. Once satisfied that there is undeclared income, trial judges have considerable leeway in imputing additional income to calculate support. The Court gave deference to the manner in which the trial judge calculated the appellant’s income and found the amount of income imputed to be reasonable.

(2) Did the trial judge err in calculating the respondent’s income?

Yes. The respondent accepted that the trial judge miscalculated her income for 2017. However, the appellant argued that the trial judge also underestimated the respondent’s income for 2018 and on a go-forward basis. The Court disagreed with the appellant and found that the trial judge made no error in the imputed income of the respondent. The Court corrected the minor errors conceded by the respondent.

(3) Did the trial judge err in calculating net family property?

Yes. The respondent agreed that the trial judge erred in her calculation of net family property and the amount of the equalization payment that the appellant should receive. The Court found the effect of this minor error was an increase in the equalization payment and corrected the trial judge’s order to reflect this change.

(4) Did the trial judge err in determining the timing of the review date for support? 

No. The trial judge ordered that her decision on support issues could be reviewed in 2021 because that is when it was anticipated that the respondent would be self-sufficient. The appellant gave no reason for requesting a variation of this order. The Court found no error in the trial judge’s decision, and found the review date to be sensible.

(5) Did the trial judge err in the costs award?

No. The Court found that the trial judge’s costs decision revealed no error in principle. Rule 18(14) of the Family Law Rules, entitled the respondent, “…unless the court orders otherwise…” to “costs to the date the offer was served and full recovery of costs from that date”. The trial judge determined that there was no basis to depart from this rule. The Court found this reasonable and, in quoting precedent, stated that in family law cases, there is arguably even greater reason to afford deference to the quantum of costs awarded.


Walker v. Coldin, 2020 ONCA 603

[Doherty, Hoy and Jamal JJ.A.]

Counsel:

B. D. Coldin, for the applicants (respondents) 1387881 Ontario Inc.

A. M. Mae, for the respondents (appellants) J.A.W., S.J.W., K.B.A.S., M.S, and B.S.

Keywords: Real Property, Prescriptive Easements,  Civil Procedure, Remedies, Injunctions, Applications, Factums, Rules of Civil Procedure, Rule 38.09(4), W. (D.) v. White, [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

facts:

This appeal arose out of a dispute concerning road access to five cottage waterfront properties that are landlocked. The respondents own three of the properties and access their cottages through an easement, creating a right of way over the property (“the Resort Property”) owned by 1387881 Ontario Inc.

In June 2018, the respondents brought an application for various forms of relief, including a declaration of a prescriptive easement over the Resort Property. The appellants conceded that there were rights of way over the Resort Property, however they argued that these rights were seasonally limited so that the respondents have no access during the winter.

The application judge held that the easement was not seasonally limited, and directed that the land registrar amend the property records for the Resort Property and the respondents’ properties to reflect the easement and enjoining the appellant from interfering with the respondents’ access.

issues:

The appellants raised six grounds of appeal:

  1. Ineffective assistance of counsel;
  2. The application judge erred in concluding that the easement is not seasonally limited;
  3. The application judge erred in concluding that she could not determine whether the easement should be moved to the new road the appellants built on the Resort Property;
  4. The application judge used an incorrect authority in determining whether the injunction sought by the respondents should be granted;
  5. The effect of the injunction is overly restrictive and disproportionate; and
  6. The application judge erred by permitting the application to proceed in the absence of a factum on the application from the respondents.
holding:

Appeal dismissed.

reasoning:

(1) Ineffective assistance of counsel.

The court held that this case does not fall within one of the exceptional types of cases where ineffective assistance of counsel can form a ground for a new trial in a civil action. The court affirmed that this is only available in rare circumstances, such as cases involving some overriding public interest or interests of vulnerable persons.

(2) The application judge erred in concluding that the easement is not seasonally limited.

The court held that the application judge was correct in determining that the easement is not seasonally limited. The court referred to the deeds produced that set out the easement. The deeds set out a right of way for both foot and vehicular traffic and contain no temporal or other restrictions and limitations. Because the deeds are unambiguous, the court stated it was unnecessary to consider any extrinsic evidence.

(3) The application judge erred in concluding that she could not determine whether the easement should be moved to the new road the appellants built on the Resort Property.

The court held that the application judge was correct in determining that, in the circumstances, an alternative location for the easement could not be given effect. The appellants did not bring a motion seeking this relief and the other cottagers that rely on the easement would require notice.

(4) The application judge used an incorrect authority in determining whether the injunction sought by the respondents should be granted.

The court held that although the 3-part test in RJR-MacDonald is the test for an interlocutory injunction, rather than a permanent one, the application judge’s citation was not an error. The court stated that due to the landlocked nature of the properties, damages would not be an adequate alternate remedy in this case.

(5) The effect of the injunction is overly restrictive and disproportionate.

The court was not persuaded that the injunction is overly restrictive or disproportionate.

(6) The application judge erred by permitting the application to proceed in the absence of a factum on the application from the respondents.

The court held that rule 38.09(4) of the Rules of Civil Procedure allow an application judge to dispense with the requirement that an applicant file a factum. There was also no indication that the appellants opposed the application judge in continuing to proceed without a factum from the respondents.


SHORT CIVIL DECISIONS

Vitucci v. Dimakis, 2020 ONCA 601

[Doherty, Hoy and Jamal JJ.A.]

Counsel:

M. J. Valente, for the moving party

K. Dimakis, appearing on behalf of T. Dimakis

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06(1)(a)


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.