Jump To: Table of Contents | Civil Decisions | Short Civil Decisions

Good evening.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of February 8, 2021.

Continue Reading

In Champoux v. Jefremova, the Court confirmed that when a party refuses to admit a fact in a request to admit, the reason for the refusal can itself become an admission. In this case, the reason for the refusal was an alternative version of the fact than the fact set out in the request to admit. The alternative version of the fact set out in the refusal to admit therefore could not be withdrawn without leave. The lesson is that care must be taken in the reasons given to refuse to admit a fact contained in a request to admit.

In Crystallex International Corporation (Re), a CCAA matter that has been ongoing since 2011, Crystallex was denied a sealing order of what it alleged was confidential information, and was denied leave to appeal that decision.

Wishing everyone a safe and happy Family Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

.


Table of Contents

Civil Decisions

Crystallex International Corporation (Re), 2021 ONCA 87

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Leave to Appeal, Sealing Orders, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, ss. 10(3), Sierra Club of Canada v. Canada (Ministry of Finance), 2002 SCC 41, Stelco Inc. (Re) (2005), 75 OR (3d) 5 (CA), Timminco Ltd. (Re), 2021 ONCA 552, Nortel Networks Corp. (Re), 2016 ONCA 332

Champoux v. Jefremova, 2021 ONCA 92

Keywords: Torts, Professional Negligence, Med Mal, Standard of Care, Civil Procedure, Evidence, Admissions, Requests to Admit, Withdrawal of Admissions, Appeals, Sufficiency of Reasons, F.H. v. McDougall, 2008 SCC 53, Longo v. MacLaren Art Centre, 2014 ONCA 526, Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.), Liu v. The Personal Insurance Company, 2019 ONCA 104, Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488

Royal Bank of Canada v. Azkia, 2021 ONCA 89

Keywords: Contracts, Debtor-Creditor, Mortgages, Civil Procedure, Summary Judgment, Certificates of Pending Litigation, Damages for Improper Registration, Fresh Evidence, Hryniak v. Mauldin, 2014 SCC 7, Palmer v. R., [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller, 111 D.L.R. (4th) 19 (Ont. C.A.)

Short Civil Decisions

L.R. v. Children’s Aid Society of Toronto, 2021 ONCA 84

Keywords: Publication Ban, Family Law, Crown Wardship, Civil Procedure, Status Review, Appeals, Mootness

CIVIL DECISIONS

Crystallex International Corporation (Re), 2021 ONCA 87

[Rouleau, Benotto and Thorburn JJ.A.]

Counsel:

R. Schwill, N. Renner and M. Littlejohn, for the moving party Crystallex International Corporation

T. Pinos, S. Kukulowicz and R. Jacobs, for the moving party Tenor Special Situation I, LP

A.H. Mark, R.J. Chadwick, P. Ruby and C. Armstrong, for the responding parties

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Leave to Appeal, Sealing Orders, Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, ss. 10(3), Sierra Club of Canada v. Canada (Ministry of Finance), 2002 SCC 41, Stelco Inc. (Re) (2005), 75 OR (3d) 5 (CA), Timminco Ltd. (Re), 2021 ONCA 552, Nortel Networks Corp. (Re), 2016 ONCA 332

facts:

The moving party, Crystallex International Corporation (“Crystallex”) has been in CCAA protection since 2011. Crystallex had a gold mine in Venezuela that the Venezuelan government expropriated its rights to. In 2016, the World Bank’s International Centre for the Settlement of Investment disputes awarded Crystallex roughly $1.2 billion in damages and Crystallex has been trying to enforce that award ever since.

In May 2020, Crystallex sought an extension of the initial order under the CCAA and requested certain information in the Monitor’s Third Party Report (the “Report”) be sealed. Computershare Trust Company of Canada (“Computershare”) opposed the motion in relation to the sealing of certain financial information. On hearing the motion, the judge refused to seal the contested information, holding that Crystallex had not met the test in Sierra Club of Canada v. Canada (Ministry of Finance), 2002 SCC 41 for the sealing of court files. The affidavit evidence did “not provide detailed or compelling reasons about how this information, if disclosed, could be used to the detriment of Crystallex or any details whatsoever as to the feared consequences of its disclosure to the public”. The evidence was “highly speculative and [did] not specify any incremental risk that Crystallex may suffer from the disclosure of this information over and above the risk it is already exposed to.”

The parties subsequently agreed to redact some portions of the Report in August of 2020. Crystallex and Tenor Special Situation I, LP (“Tenor”) sought leave to appeal the May 2020 endorsement refusing to seal the Report.

issues:

(1) Should leave to appeal be granted?

holding:

Motion dismissed.

reasoning:

(1) Should leave to appeal be granted?

No. Leave to appeal is granted sparingly in CCAA proceedings and only where there are serious and arguable grounds that are of real and significant interest to the parties. In addressing whether leave should be granted, the court will consider: (1) whether the proposed appeal is prima facie meritorious or frivolous; (2) whether the points on the proposed appeal are of significance to the practice; (3) whether the points on the proposed appeal are of significance to the action; and (4) whether the proposed appeal will unduly hinder the progress of the action: Stelco Inc. (Re) (2005), 75 (OR) (3d) 5 (CA).

Turning to the case at hand, the Court of Appeal was not satisfied the appeal was prima facie meritorious or significant to the practice. The order was discretionary and made by a judge intimately familiar with the proceedings. The motion judge considered the appropriate test in Sierra Club and properly considered the evidence before him. As the first two prongs of the leave test were not met, leave to appeal was refused.


Champoux v. Jefremova, 2021 ONCA 92

[van Rensburg, Hourigan and Brown JJ.A.]

Counsel:

G. Adair and P. Denton, for the appellant

G. Ragan and K. Ahn, for the respondent

Keywords: Torts, Professional Negligence, Med Mal, Standard of Care, Civil Procedure, Evidence, Admissions, Requests to Admit, Withdrawal of Admissions, Appeals, Sufficiency of Reasons, F.H. v. McDougall, 2008 SCC 53, Longo v. MacLaren Art Centre, 2014 ONCA 526, Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293, Antipas v. Coroneos (1988), 26 C.P.C. (2d) 63 (Ont. H.C.), Liu v. The Personal Insurance Company, 2019 ONCA 104, Allto Construction Services Ltd. v. Toronto and Region Conservation Authority, 2017 ONCA 488

facts:

The plaintiff attended Kirkland Lake Hospital’s emergency department on June 29, 2012, intending to seek treatment for an abscess on her buttocks and hyperglycemia. Dr. Jefremova, the defendant, examined the plaintiff and noted that her heart rate was elevated as was her blood sugar. However, prior hospital records indicated the plaintiff’s heart rate was always elevated and her blood sugar reading was within her usual range. Dr. Jefremova examined the abscess, decided it was not yet ready to break, and sent the plaintiff home. The plaintiff returned to hospital on July 2 as the abscess had grown rapidly and her blood sugar was higher. The plaintiff was admitted and the abscess was surgically drained. She was discharged July 13, but was re-admitted on several subsequent occasions to deal with abscess drainage. The plaintiff brought a medical malpractice action against Dr. Jefremova.

The trial judge reviewed evidence that focused on whether Dr. Jefremova breached the standard of care of a reasonable and prudent doctor in her treatment of the plaintiff. An important consideration was the location of the abscess as this informed the requisite standard of care. Plaintiff’s counsel served a Request to Admit upon Dr. Jefremova which became significant at trial. The plaintiff requested that Dr. Jefremova admit that “[o]n June 29, 2012, Penny Lee Champoux had a perianal abscess.” Dr. Jefremova delivered a Response to Request to Admit, wherein she refused to make the admission. In the reason for the refusal, Dr. Jefremova’s counsel stated that “[o]n June 29, 2012, Penny Lee Champoux presented with a buttock abscess/swollen nodule in the general perianal area.” At trial, plaintiff’s counsel closed his case without referring to the Request to Admit. It was entered as Exhibit 9, along with the Response to Request to Admit and a document entitled “Admissions Made by the Defendant Jefromova” [sic].

An expert testified at trial that the plaintiff suffered from a simple buttock abscess and Dr. Jefremova had met the standard of care. However, it was put to this expert on cross-examination that Dr. Jefremova admitted in her Response to Request to Admit that the abscess was in “the general perianal area.” The expert stated that if it was clearly a perianal abscess or in the perianal region, the plaintiff should not have been sent home and the abscess should have been incised and drained right away.

While the trial was underway, Dr. Jefremova’s counsel wrote to plaintiff’s counsel to advise that the Response to Request to Admit had left her office through inadvertence and without Dr. Jefremova’s instructions. She requested consent to withdrawal of the admission. Plaintiff’s counsel refused. Dr. Jefremova brought a motion seeking to either clarify or withdraw the admission. In written reasons, the trial judge dismissed the motion to withdraw the admission. He also found that it was inappropriate at that point in the proceeding to rule on the interpretation to be given to the Response to Request to Admit. Instead, he held that the interpretation of the admission was best left for consideration after final submissions.

In his reasons for decision, the trial judge considered all of the evidence and found that on June 29, 2012, the plaintiff presented with an abscess located near the middle of her left buttock cheek. He concluded that Dr. Jefremova met the standard of care based on the location of the abscess. The trial judge did not consider the issues of causation or damages and dismissed the action.

issues:

(1) Were the trial judge’s reasons insufficient to permit appellate review?

(2) Did the trial judge err in his consideration of a Response to Request to Admit filed by counsel for Dr. Jefremova?

holding:

Appeal allowed.

reasoning:

(1) Were the trial judge’s reasons insufficient to permit appellate review?

Yes. The law regarding insufficient reasons is well established. Meaningful appellate review is precluded if the decision of the court below does not provide some insight into how the legal conclusion was reached and what facts were relied on in reaching that conclusion. When reasons are insufficient, it may be necessary for the appellate court to send the matter back to the court below for a new hearing, so as to protect the integrity of the judicial system. The Court observed that the insufficient reasons ground of appeal was being asserted with increasing frequency in cases where there was no reasonable basis to argue that the reasons of the court below were anything other than straightforward. This case, however, was not a situation where the parties and the Court were left to speculate on how the trial judge reached his conclusion on critical issues.

The trial judge spent much of his reasons summarizing the evidence of the witnesses who testified at trial. There was nothing wrong with writing reasons this way, but the Court emphasized that a detailed factual recitation was no substitute for a considered analysis of the issues. When reasons begin with a very detailed recitation of the evidence is that, the analysis tends to be largely conclusory. This was what happened in the case at bar.

As in most medical malpractice cases, the expert evidence was of significant importance. There were several areas where the experts disagreed, and the trial judge was obliged to explain why he preferred the evidence of one expert over another. Expressing a general preference was insufficient, as was a reference to one expert’s approach being more practical. Given the trial judge’s failure to consider key points of analysis—specifically regarding determination of the appropriate standard of care and whether the experts’ criticisms of Dr. Jefremova’s care were correct—the Court found the trial judge’s reasons were not amenable to appellate review. As both the plaintiff and the Court could not discern how the trial judge dealt with these critical issues, a new trial was deemed necessary.

(2) Did the trial judge err in his consideration of a Response to Request to Admit filed by counsel for Dr. Jefremova?

Yes. The trial judge’s treatment of the admission in the Response to Request to Admit resulted in an unfair trial for the plaintiff. Dr. Jefremova argued on appeal that the impugned admission in the Response to Request to Admit was not a formal admission because it was proffered in the context of a refusal. The Court did not accept this submission. The purpose of request to admit procedures is to save time and costs by narrowing the facts in issue. Allowing a litigant to deny a fact in a Request to Admit on the basis that an alternative set of facts is accurate, but then treat those proffered alternative facts as non-binding, would subvert that purpose. Further, Dr. Jefremova’s counsel brought a motion to withdraw the admission after seeking the plaintiff’s consent to the withdrawal, indicating that all parties viewed the response as a formal admission.

The trial judge considered whether the admission was one purely of fact, law, or mixed fact and law, and applied a three-part conjunctive test regarding when an admission could be withdrawn:

(a) Does the proposed amendment raise a triable issue in respect to the truth of the admission?

(b) Is there a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions?

(c) Has the party wishing to withdraw the admission established that the withdrawal will not result in any prejudice that cannot be compensated for in costs?

In his reasons, the trial judge reviewed the evidence regarding the location of the abscess and concluded “it is asking too much in seeking to have that imprecise expression [in the Response to Request to Admit] accepted as proof on the balance of probabilities that the plaintiff presented to the ER with anything more serious than an abscess on her buttocks.” Nowhere did the trial judge consider the document in Exhibit 9 wherein the admissions made by Dr. Jefremova were listed. The trial judge dismissed the motion on the basis that it was an admission of pure fact and that there was no triable issue with regard to its truth. However, in his analysis of the admission’s interpretation, he proceeded to effectively conduct an analysis of the truth of the admission. Thus, the reasons on the motion and the reasons on the trial were contradictory.

A trial judge has the freedom to interpret what an admission means, but that interpretive analysis cannot morph into an analysis of the veracity of the admission. Unlike other evidence led at trial that a judge can weigh at his discretion, a formal admission is conclusive of the matter admitted. A court is bound to act on formal admissions before it, even if other evidence contradicts the admission. In the case at bar, the trial judge weighed the admission against the other evidence and permitted the withdrawal of the admission on the basis that it was not accurate. He did so despite his earlier finding that there was no triable issue in respect of the truth of the admission and his dismissal of the motion to withdraw the admission. It was clear the plaintiff based her trial strategy on the fact that she had the admission. The court found the trial judge’s reasons effectively bypassed the rigorous test for the withdrawal of an admission and resulted in an unfair trial for the plaintiff.


Royal Bank of Canada v. Azkia, 2021 ONCA 89

[Rouleau, Benotto and Thorburn JJ.A.]

Counsel:

H. Niroomand, for the appellants

J. Kukla, for the respondent

Keywords: Contracts, Debtor-Creditor, Mortgages, Civil Procedure, Summary Judgment, Certificates of Pending Litigation, Damages for Improper Registration, Fresh Evidence, Hryniak v. Mauldin, 2014 SCC 7, Palmer v. R., [1980] 1 S.C.R. 759, Sengmueller v. Sengmueller, 111 D.L.R. (4th) 19 (Ont. C.A.)

facts:

The respondents, Royal Bank of Canada (“RBC”) lent money to the appellants by way of mortgages, demand loans, lines of credit, overdrafts and credit cards. By October 2018, the balance, including interest, was approximately $5 million. RBC commenced three actions to recover the various debts. The actions related primarily to mortgages made in favour of RBC secured by two properties, and a demand loan which the bank claimed was secured by a second mortgage on one of those properties.

RBC brought a motion for summary judgment in all three actions. The appellants opposed the motion for summary judgment on the basis that there was a sufficiently close connection among the three actions that it would be inequitable to allow RBC to obtain summary judgment in respect of the three claims without first deciding the counterclaim that the appellants had advanced and permitting the appellants to set off any award in the counterclaim against amounts owing in the other actions.

The gist of the defence was that the defendants were renovating one of the properties in order to sell it. They had a buyer, but the sale did not close because the certificate of pending litigation (“CPL”) prevented the appellants from obtaining a small amount of additional financing from a third party which would have enabled them to complete the renovations.

The motion judge granted summary judgement in all three actions, but vacated the CPLs because RBC had not made proper disclosure when obtaining them. The motion judge held that the appellants had not demonstrated that there was any issue that required a trial, as the counterclaim for damages was “implausible and the defendants have not provided any evidence at all about their damages, let alone sufficient evidence to demonstrate that a trial [was] required on damages.” The motion judge also dismissed RBC’s request for an order for a legal or equitable mortgage in respect of the demand loan over the two properties. RBC had not established on a balance of probabilities that there was a mutual intention by the parties to grant a mortgage on those properties as security for the demand loan.

issues:

(1) Did the motion judge err in finding that there was no genuine issue requiring trial in respect of the counterclaim and refusing to order a stay of execution on the judgments?

(2) Should the appellants be granted leave to adduce new evidence on appeal?

holding:

Appeal dismissed.

reasoning:

(1) Did the motion judge err in finding that there was no genuine issue requiring trial in respect of the counterclaim and refusing to order a stay of execution on the judgments?

No. As explained in Hryniak v. Mauldin, 2014 SCC 7: there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a summary judgment motion. This will be the case when the process: (1) allows the judge to make necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Parties are required to present the best version of their case on a motion for summary judgment. However, the appellants adduced no evidence from lenders that they would have advanced funds if the CPLs had not been placed on title. It was therefore open to the motion judge to reject the appellants’ evidence regarding damages and the Court of Appeal held that the motion judge’s findings were owed deference.

The motion judge accepted the appellants’ submission that the CPLs should not have been placed on the properties and ordered that the CPLs be vacated. However, he held that the appellants had not suffered damages as a result of the CPLs, as pleaded in the appellants’ counterclaim. This finding was also owed deference.

(2) Should the appellants be granted leave to adduce new evidence on appeal?

The appellants sought to introduce an exhibit of documents that consisted of letters and other documentation regarding refinancing. The documents were not put before the motion judge, nor were they appended to an affidavit on the appeal.

The Court of Appeal held that this evidence did not meet the test for the introduction of fresh evidence on appeal. The appellants were represented at trial and this evidence could and should have been obtained prior to the motion for summary judgment if the appellants had exercised reasonable diligence. Further, as it had not been attached to a sworn affidavit, the respondents had no opportunity to examine or cross-examine on the evidence. Finally, even if the new evidence had been allowed, the Court held that it did not demonstrate any quantifiable damages.


SHORT CIVIL DECISIONS

L.R. v. Children’s Aid Society of Toronto, 2021 ONCA 84

[Rouleau, Benotto and Thorburn JJ.A.]

Counsel:

C. Withanage and M. Duncan, for the moving party the Children’s Aid Society of Toronto

J. Long and G. Gottlieb, for the responding party the Office of the Children’s Lawyer

L.R., acting in person

T.H., acting in person

Keywords: Publication Ban, Family Law, Crown Wardship, Civil Procedure, Status Review, Appeals, Mootness


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.

Print:
EmailTweetLikeLinkedIn
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.