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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of July 19, 2021.

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In Florence v Benzaguen, the Court grappled with the issue of whether it is settled law in Ontario that doctors do not owe a duty of care to an unborn child pre-conception. After their mother was prescribed a fertility drug that was allegedly contraindicated, the Appellant triplets were born prematurely and have serious disabilities. The majority struck the Appellants’ claim of negligence, holding that no duty of care is not recognized at law. The relationship between a doctor and an unborn child pre-conception lacks the necessary proximity to create a duty of care. The majority also adopted the recognized public policy concern of the conflict of interest that would be created if a doctor owed a concurrent duty of care to the patient and their future child. In dissent, Fairburn A.C.J.O. held that this issue was not settled law and ought to be decided at trial. I suspect this may not be the last word on the issue.

In Canadian Union of Postal Workers v. B’nai Brith Canada, the Court of Appeal dismissed B’nai Brith’s appeal from an order dismissing its anti-SLAPP motion. The Canadian Postal Workers’ Union had sued B’nai Brith in defamation arising out of public allegations that the Union supported terrorism.

Other topics covered this week included breach of contract in a sports dispute, negligent investigation and malicious prosecution, a mortgage action, the interpretation of election by-laws of a non-share capital corporation, and the presumption of resulting trust.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Flood v. Boutette, 2021 ONCA 515

Keywords: Torts, Liability of Public Authorities, Negligent Investigation, Malicious Prosecution, Misfeasance in Public Office, Harassment, Intentional Infliction of Emotional Distress, Fire Code, O. Reg. 213/07, Section 9.3, Building Code, O. Reg 332/12 s. 1.4.1.2, Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, Sections 21, 28, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Municipal Act, 2001, S.O. 2001, c. 25, s. 450, Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.), Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.), Good v. Waterloo (City) (2013), 67 O.R. (3d) 89 (S.C.), aff’d 72 O.R. (3d) 719 (C.A.), R. v. Shepherd, 2009 SCC 35, FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, Payne v. Mak, 2018 ONCA 622, City of Ottawa v. Bentolila, 2006 ONCJ 541, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Miazga v. Kvello Estate, 2009 SCC 51, Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348, Merrifield v. Canada (Attorney General), 2019 ONCA 205

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

Keywords: Torts, Negligence, Intentional Interference with Economic Relations, Civil Procedure, Default Judgments, Trials, Bifurcation, Deemed Admissions, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Costs, Rules of Civil Procedure, Rules 6.1.01 and 19.05(1), OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, aff’d. 2020 ONCA 659, OZ Merchandising Inc. v. Canadian Professional Soccer League, 2018 ONSC 7468, Correia v. Canac Kitchens, 2008 ONCA 506, R. v. C.(P.), 2015 ONCA 30, D.W. v. White, 2004 CanLII 22543 (ON CA), S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243 (C.A.)

MacIntyre v. Winter,, 2021 ONCA 516

Keywords: Family Law, Property, Resulting Trust, Gifts, Pecore v. Pecore, 2007 SCC 17, Kerr v. Baranow, 2011 SCC 10, F.H. v. McDougall, 2008 SCC 53, Bergen v. Bergen, 2013 BCCA 492, Christopher v. Freitas, 2019 ONCA 84, Chao v. Chao, 2017 ONCA 701, McNamee v. McNamee, 2011 ONCA 533, M. Gillen, L. Smith & D. W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012)

Chandrasegaram v. Canadian Tamil Medical Association, 2021 ONCA 526

Keywords: Voluntary Associations, Non-Share Capital Corporations, Bylaws, Interpretation, Officers and Directors, Elections, Annual General Meetings

Florence v. Benzaquen, 2021 ONCA 523

Keywords: Torts, Negligence, Wrongful Life, Duty of Care, Proximity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Family Law Act, R.S.O. 1990, c. F.3, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, Paxton v. Ramji, 2008 ONCA 697, Liebig v. Guelph General Hospital, 2010 ONCA 450, Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, 688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Edwards v. Law Society of Upper Canada, 2001 SCC 80, Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), aff’d (2004), 26 C.C.L.T. (3d) 246 (Ont. C.A.), X and Y (By Her Tutor X) v. Pal, [1991] NSWCA 302

Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529

Keywords: Torts, Defamation, Anti-SLAPP, Defences, Truth, Justification, Fair Comment, Responsible Communication, Malice, Courts of Justice Act, R.S.O. 1990, c. C.43., s.137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Bent v. Platnick, 2020 SCC 23, WIC Radio Ltd. v. Simpson, 2008 SCC 40, Grant v. Torstar Corp., 2009 SCC 61, Armstrong v. Corus Entertainment Inc., 2018 ONCA 689,  Lascaris v. B’nai Brith Canada, 2019 ONCA 163, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130

Eisen v. 2293398 Ontario Inc., 2021 ONCA 537

Keywords: Contracts, Real Property, Mortgages, Civil Procedure, Default Judgment, Remedies, Possession, Appeals, Stay Pending Appeal, Zafar v. Saiyid, 2017 ONCA 919, Circuit World Corp. v. Lesperance, 33 O.R. (3d) 674, M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Short Civil Decisions

Amrane c. Abraham, 2021 ONCA 536

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Canadian Charter of Rights and Freedoms, City of Toronto Act , 2006, SO 2006, vs. 11, Schedule A, Ontario Works Act , 1997, SO 1997, c. 25 Appendix A, Vancouver (City) v. Ward , 2010 SCC 27


CIVIL DECISIONS

Flood v. Boutette, 2021 ONCA 515

[Pepall, Roberts and Thorburn JJ.A.]

Counsel:

A. James and J. Greenberg, for the appellants, K.F. and A.M.L.

S. Pickard, for the appellants, J.P and S.P.

S.C. Handler, for the respondents

Keywords: Torts, Liability of Public Authorities, Negligent Investigation, Malicious Prosecution, Misfeasance in Public Office, Harassment, Intentional Infliction of Emotional Distress, Fire Code, O. Reg. 213/07, Section 9.3, Building Code, O. Reg 332/12 s. 1.4.1.2, Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, Sections 21, 28, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134, Municipal Act, 2001, S.O. 2001, c. 25, s. 450, Hill v Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.), Ontario (Ministry of Labour) v. Hamilton (City), 58 O.R. (3d) 37 (C.A.), Good v. Waterloo (City) (2013), 67 O.R. (3d) 89 (S.C.), aff’d 72 O.R. (3d) 719 (C.A.), R. v. Shepherd, 2009 SCC 35, FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, Payne v. Mak, 2018 ONCA 622, City of Ottawa v. Bentolila, 2006 ONCJ 541, 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, Miazga v. Kvello Estate, 2009 SCC 51, Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348, Merrifield v. Canada (Attorney General), 2019 ONCA 205

facts:

The Appellants, the Fs and the Ps, are residential landlords who own properties around the University of Windsor and rent them to university students. In 2006, a report from the Respondent, MS, the City’s Chief Building Official, contained a retrofit enforcement strategy that recommended that the Fire Department look at suspected non-compliant lodging houses, as per the Fire Code; which was approved by various City departments. As part of this inspection, the Respondent, SB, a city fire-prevention officer, classified the Appellants’ properties as lodging houses and charged them with Fire Code violations.

The trial judge hearing the Fire Code offences dismissed them, having held that the F Appellants’ properties were not lodging houses within the meaning of the Fire Code and did not require a retrofit. Shortly after, the charges against the P Appellants were withdrawn.

The F and P Appellants sued the Respondents, SB, RM, LT, MS, MM, Windsor Fire and Rescue Services Department, and the Corporation of the City of Windsor (“the City”) seeking damages for, among other things, negligent investigation, malicious prosecution, Charter violations and bad faith. The Appellants withdrew their claims against RM, MS, and MM before trial and the trial judge dismissed the remaining claims holding that (i) the Respondents had reasonable grounds to believe the properties were lodging houses prior to the laying charges, (ii) SB did not conduct a negligent investigation, and (iii) neither the investigation nor laying charges was motivated by malice.

The Appellants argued that the trial judge should not have dismissed the claims as (i) SB knew or ought to have known the buildings were not lodging houses and there were therefore no reasonable or probable grounds to lay the charges, (ii) SB conducted a negligent investigation, and (iii) the Respondents acted in bad faith as their motive was to reduce student housing in Windsor. The P Appellants also submitted that the trial judge ignored their claim of undue delay and abuse of authority and sought to remit that claim to the Superior Court for determination.

issues:

(1) Did the trial judge err in concluding that SB had reasonable and probable grounds to lay charges against the Appellants?

(2) Did SB conduct an otherwise negligent investigation?

(3) Were the appellants maliciously prosecuted?

(4) Should the P Appellants’ unresolved claims be remitted to the Superior Court for determination?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court held that SB had reasonable and probable grounds to lay the charges. First, the Court rejected the P Appellants’ argument that the trial judge failed to assess the charges against them independently of the charges laid against the F Appellants as the P Appellants failed to provide evidence of how the investigation against them differed. The trial judge was presented with the argument that SB conducted investigations in both cases because he knew, or ought to have known, that the residences in question were not boarding houses such that the requirements of the Fire Code were inapplicable and thus he lacked reasonable and probable grounds to lay charges. Thus, the Court held the trial judge was entitled to jointly consider this issue.

The Court then rejected the Appellants’ claim that the trial judge applied the wrong standard of review. The Court held that the trial judge correctly found that SB objectively had reasonable and probable grounds to lay the charges. Investigators owe a duty of care to those they investigate, and SB owed a standard of care of a reasonable fire safety inspector in similar circumstances. The Court relied on Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, where the Supreme Court of Canada held that this duty is to exercise discretion in a manner that falls within the range of reasonable decisions available at the time of the decision. The Court held that the standard of care is informed by the legal requirement of reasonable and probable grounds to believe the suspect is guilty. Further, an investigator does not need to evaluate evidence to a legal standard or make legal judgments to determine whether there are reasonable and probable grounds to lay charges.

The Court also rejected the Appellants’ argument that the effect of withdrawing charges or the absence of a conviction meant that reasonable and probable grounds did not exist. The Court held that reasonable grounds may still exist where the information relied upon changes at a future date or otherwise turns out to be inaccurate. The Court held that it is required that the information be reliable at the time the decision was made to lay charges: Collis v. Toronto Police Services Board (2007), 228 O.A.C. 333 (Div. Ct.).

The Court held that given the evidence, SB did not breach the standard of care. As the definition of boarding, lodging and rooming houses are not defined in the Fire Code, SB was entitled to believe that the Appellants’ properties were lodging houses as they met the criteria outlined in s. 9.3.1.1 of the Fire Code. The Court upheld the trial judge’s finding that there were reasonable and probable grounds to believe an offence had been committed. The judge did not err in her standard of care analysis.

(2) No.

The Court reiterated that the law distinguishes between unreasonable mistakes that breach the standard of care and errors in judgment which a reasonable professional might make. SB’s role was to investigate incidents that might breach the Fire Code, and determine whether charges should be laid, and present the facts to the prosecutor. SB was not required to canvass all possible avenues of investigation, interview all potential witnesses, evaluate evidence according to legal standards, or draw correct legal conclusions: 495793 Ontario Ltd. (Central Auto Parts). The Court stated that SB attended each of the premises at least once to investigate, sought the opinion of several people who had dealt with similar issues, and consulted with the Fire Marshal and Crown Attorney. The Court found he received little help from the Appellants to obtain further information about the properties. For these reasons, the Court upheld the trial judge’s decision on this issue.

(3) No.

Applying Miazga v. Kvello Estate, 2009 SCC 51, the Court held that malicious prosecution did not arise in this case as SB acted with reasonable and probable grounds. The trial judge fairly concluded there was no malice on the part of SB as he conducted a protracted investigation of the facts and demonstrated some concern for the appropriateness of the charges ultimately brought. The Court concluded that the trial judge’s decision was amply supported by the evidence and did not ignore the evidence of the difficult relationship between SB and the Appellants during the investigation.
The Court rejected the Appellants’ argument that the City Council maliciously prosecuted them, and that it was vicariously liable for SB’s malice. The Court upheld the trial judge’s decision and found that SB was not at City Council meetings and the City’s conduct did not affect SB’s investigations.

(4) No.

The P Appellants requested that the Court determine their unaddressed issues in accordance with its discretion under s. 134 of the Courts of Justice Act. In 2007, the P Appellants were denied the requested variance to their property by the City’s Committee of Adjustment (“Committee”) on the basis that: (i) it was not a minor variance, (ii) the variance was not desirable for the appropriate development of the land, and (iii) the granting of the application would depart from the purpose of the zoning bylaw and the City’s Official Plan. The Ps successfully appealed the Committee’s decision to the Ontario Municipal Board (“OMB”), but a City solicitor believed a site plan control process was required. In 2009, the Ps underwent the site plan control process and a vote was held to approve the P’s application, resulting in a tie. The Ps appealed and were approved.

The Court held that there was a lack of evidence to find that the City solicitor acted negligently or with malice. Regarding the delays caused by the Committee, the Court held that the City would not be liable for these delays as they were a result of policy decisions, made in good faith, and there was no legal liability in tort under the Municipal Act, 2001, S.O. 2001, c. 25, s. 450.

The Court further held that the P Appellants pleading of harassment and intentional infliction of emotional distress was unfounded. Harassment is not yet recognized as a common law tort, and this case did not warrant its recognition: Merrifield v. Canada (Attorney General), 2019 ONCA 205. Additionally, the Court held that the claim of intentional infliction of emotional distress was flawed, as there was no conduct at issue that was flagrant, outrageous, or calculated to harm the P Appellants. The Court also stated that the claim for misfeasance in public office failed as the City councilors did not act unlawfully or in bad faith when they elected to vote. For these reasons, the Court dismissed the P Appellants’ appeal.


OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

N. Karnis and R. Prasad, for the Appellant

J. Goldblatt and J. Howell, for the Respondents, Eastern Ontario District Soccer Association, The Ontario Soccer Association

A. K. Lee, for the Respondent, Canadian Soccer Association

Keywords: Torts, Negligence, Intentional Interference with Economic Relations, Civil Procedure, Default Judgments, Trials, Bifurcation, Deemed Admissions, Ineffective Assistance of Counsel, Reasonable Apprehension of Bias, Costs, Rules of Civil Procedure, Rules 6.1.01 and 19.05(1), OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2019 ONSC 3882, OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, aff’d. 2020 ONCA 659, OZ Merchandising Inc. v. Canadian Professional Soccer League, 2018 ONSC 7468, Correia v. Canac Kitchens, 2008 ONCA 506, R. v. C.(P.), 2015 ONCA 30, D.W. v. White, 2004 CanLII 22543 (ON CA), S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243 (C.A.)

facts:

The appellant appealed the dismissal of its action against the respondents and sought leave to appeal the costs order made by the trial judge, in the event the main appeal failed. The action began in 2004 but only proceeded to trial in 2019; by then, only one plaintiff, the appellant, and three defendants remained.

The Ottawa Wizards were a soccer club in the Canadian Professional Soccer League (“CPSL”) from 2001 to 2003. In 2003, three events occurred. First, in September, the Ottawa Wizards applied to the OSA to host the OZ Optics Invitational Tournament; the application was denied, and the tournament was not held. Second, in November, the CSA issued International Transfer Certificates (“ITCs”) for two Ottawa Wizards players, which resulted in their return to Malawi. Third, in December, the EODSA publicized that OZ Dome Sports Club had not applied to operate an indoor league during the 2003-2004 season and described the potential consequences of participating in “unsanctioned competition” at the OZ Dome facilities.

The appellant claimed against each respondent, alleging negligence and intentional interference with the economic interests of the appellant (referred to by the trial judge as the “unlawful means” claim). The trial judge dismissed the negligence and unlawful means claims as against each respondent.

The trial judge concluded the appellant had failed to establish any of the essential elements necessary to prove either of the claims it advanced against the respondents. To the extent the appeal turned on alleged errors made by the trial judge in her analysis of the claims, the appellant could only succeed if it demonstrated errors in respect of all three elements of the negligence claim, or all three elements of the “unlawful means” claim.

issues:

(1) Did the trial judge make palpable and overriding errors of fact and law in respect of the negligence claim?

(2) Did the trial judge make evidentiary and procedural errors that rendered the trial unfair?

(3) Was there ineffective assistance of counsel?

(4) Was the trial judge biased against the appellant?

(5) Should leave to appeal the costs order be granted and should the costs awarded against the appellants be set aside?

holding:

Appeal dismissed.

reasoning:

(1) No

The Court found there was no error in the trial judge’s fact finding. She considered the evidence and the arguments relating to the ownership of the Wizards. The trial judge emphasized the 2000 application for membership in the Canadian Professional Soccer League but also relied on all the evidence presented. The trial judge has discretion to assign weight to the evidence, which can only be overturned on appeal if there is a palpable and overriding error. The Court did not accept the appellants argument that the trial judge limited her consideration to the purely legal relationships between the appellant and the respondents.

(2) No

The Court found the rulings did not prejudice the appellant and that the trial judge’s rulings accorded with the applicable procedural and evidentiary rules. Rule 19.05(1) of the Rules of Civil Procedure expressly contemplates a plaintiff moving for judgment against a defaulting defendant “before a judge”. The Rule also provides that the judge may “order that the action proceed to trial”. These rules give a judge the discretion to hear a motion for judgment, and discretion to order the matter to trial. Neither entitles a plaintiff to put the motion before a jury. The discretion as to how, and in what forum, the matter will proceed is left to the judge.

The appellant submitted the trial judge bifurcated the trial contrary to the provisions in Rule 6.1.01. The Court found there was no bifurcation of the trial. The trial judge correctly held the default proceedings were a separate proceeding from the trial. The trial judge’s holding, that evidence not relevant to the claims as pleaded against the respondents would not be heard by the jury, was not a bifurcation of the issues properly before the jury, but an application of the universal rule limiting admissibility to evidence relevant to the issues to be decided by the jury. The Court also found that the trial judge was correct in rejecting the appellant’s numerous attempts to expand the scope of the trial beyond the boundaries of the pleadings.

The appellant argued it was entitled to refer to the contents of the FIFA rules in support of its negligence claim, especially as it related to the transfer of the contracts of the two Ottawa Wizards players. The Court agreed with the respondents that the issue was not the admissibility of the FIFA rules. The trial judge concluded that she had no evidence as to how, if at all, the rules applied in the specific circumstances of the two Ottawa Wizards players. Absent evidence, the trial judge was not prepared to accept, as valid, the appellant’s interpretation of the relevant rules. In the absence of evidence, the trial judge made no error in refusing to act on the appellant’s submissions as to the meaning of the rules.

(3) No.

The only evidence in support of the claim of ineffective assistance came from an affidavit of the appellant’s representative. Although one section of that affidavit was headed “Ineffective Assistance of Counsel”, many complaints were directed primarily at the trial judge. The Court found none of the portions of the affidavit referring to the competence of trial counsel met the criteria for the admissibility of fresh evidence. The Court found the opinion in the affidavit to be inadmissible as the appellant’s representative was not qualified to give an opinion as to the competence of counsel. Even if the affidavit was admissible, it was wrong. The Court commented that it was remarkable that the appellant had made this submission given that counsel who the appellant claimed was incompetent at trial also appeared as co-counsel for the appellant on the appeal.

(4) No.

The Court found none of the events referred to by the appellant offered any basis upon which a reasonable person could have perceived institutional bias among the Ottawa judiciary toward the appellant’s representative and found his allegations to be baseless.

The Court stated that although the appellant claimed the trial judge’s ruling striking the jury notice demonstrated the trial judge’s bias, the appellant did not challenge the correctness of that ruling in its factum. The Court found the bias allegations assumed the trial judge made serious and repeated errors during the trial. If those assumptions had merit, the appellant would have succeeded on the appeal by virtue of having demonstrated the serious errors without recourse to any bias allegation.

Further, the Court found the appellant’s allegations that the trial judge’s facial expressions and body language also indicated bias to be vague, and absent any evidence, these kinds of allegations alone cannot rebut the strong presumption in favour of judicial impartiality. The Court found there was nothing in the record to support the suggestion that the ethnic background of the appellant’s representative had anything to do with the trial judge’s rulings or conduct of the trial.

(5) No.

The Court found no error in the amount of costs awarded against the appellant. The litigation was lengthy, convoluted and hard fought. On the findings of the trial judge, the actions of the appellant, particularly the repeated re-litigation of issues previously decided, unnecessarily prolonged the litigation. The Court found the trial judge also properly considered the amount of costs claimed by the appellant.

The Court agreed with the trial judge that the appellant’s representative assumed personal control over the conduct of the litigation. His attempts to excuse or even justify his conduct based on his temperament and the inexperience of his counsel should carry no weight when deciding whether he should be personally responsible for some part of the costs. The Court found no error in the trial judge’s quantification of the extent of his personal responsibility. The Court granted leave to appeal the costs order but dismissed the costs appeal.


MacIntyre v. Winter, 2021 ONCA 516

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

C. Craig and I. Marcovitch, for the Appellant

M.D. Blais, for the Respondent

Keywords: Family Law, Property, Resulting Trust, Gifts, Pecore v. Pecore, 2007 SCC 17, Kerr v. Baranow, 2011 SCC 10, F.H. v. McDougall, 2008 SCC 53, Bergen v. Bergen, 2013 BCCA 492, Christopher v. Freitas, 2019 ONCA 84, Chao v. Chao, 2017 ONCA 701, McNamee v. McNamee, 2011 ONCA 533, M. Gillen, L. Smith & D. W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012)

facts:

The Appellant and Respondent started a relationship in 1994. They never married and did not have children. In 1999, the parties purchased their first home as joint tenants. $100,000 was provided by the Appellant’s mother toward the purchase price. The Respondent was responsible for mortgage payments. The Appellant made the down payment and was responsible for all other expenses associated with the home.

In 2005, the parties purchased a more expensive home. The purchase of the residence was financed through a mortgage, the proceeds of sale of the first home, and additional monies contributed by the Appellant. However, the parties were victim to harassment in the neighbourhood because they were a same-sex couple. This harassment had a negative impact on the parties’ mental health and put a strain on the relationship. They separated on February 5, 2017.

The trial judge ordered the Appellant to pay the Respondent spousal support of $269 per month on an indefinite basis, subject to a material change in circumstances. The trial judge further ordered that the Appellant designate the Respondent as the irrevocable beneficiary of a life insurance policy with a minimum amount of $50,000 for so long as he has an obligation to pay spousal support. Furthermore, despite the Appellant seeking the first $480,248.82 of the net proceeds of the sale of the home for his contributions, the trial judge ordered equal division.

issues:

(1) Did the trial judge err in deciding that the Appellant gifted the down payments?

holding:

Appeal allowed.

reasoning:

(1) Yes.

The presumption of resulting trust is a rebuttable presumption of law and a general rule that applies to gratuitous transfers. Where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended because equity presumes bargains, not gifts: Pecore v. Pecore, 2007 SCC 17, at para. 24. The trial judge weighed the conflicting evidence and appeared to make a determination based on credibility. However, the onus was on the Respondent to establish, on a balance of probabilities, that it was the Appellant’s intention to gift the money: Pecore, at para. 43.

The trial judge pointed to several factors that displayed the Appellant’s intent to gift the money. Many of these factors were not relevant to the analysis. One of the factors was the fact that the home was put in joint tenancy because the parties wanted to avoid litigation and third-party involvement. However, the trial judge did not recognize that survivorship could be separated from the intent to gift. A right of survivorship alone is not sufficient to rebut the presumption of a resulting trust: M. Gillen, L. Smith & D. W.M. Waters, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Thomson Reuters Canada, 2012), at § 10.II.B.2 (WL). Again, the trial judge failed to place the onus on the Respondent to rebut this presumption thorough evidence to support his claim: Bergen v. Bergen, 2013 BCCA 492, at para. 42.

Furthermore, the trial judge relied on the fact that the proceeds of the sale of the first home were paid into the parties’ joint bank account to conclude that the Appellant did not intend to be repaid the monies he had advanced. This conclusion ignored the fact that the purchase of that new home was being financed, in part, by the proceeds of sale from the first home. The Appellant requesting his money back at this time would be inconsistent with the parties’ intention to buy a new home.

The trial judge also found that it was not credible that the Appellant would invest $100,000 and not secure repayment through a written document. This conclusion was inconsistent with the finding that the Appellant had also loaned $250,000 to the Respondent in a separate arrangement without having put it in writing. The absence of documentation is not determinative of an intention to gift: Chao v. Chao, 2017 ONCA 701, at para. 54. In the absence of clear, convincing, and cogent evidence to the contrary, the Respondent, who had the burden of rebutting the presumption of a resulting trust, could not succeed.


Chandrasegaram v. Canadian Tamil Medical Association, 2021 ONCA 526

[Brown, Roberts and Zarnett JJ.A.]

Counsel:

M. Donald, for the appellant

J. Aruldason, for the respondents

Keywords: Voluntary Associations, Non-Share Capital Corporations, Bylaws, Interpretation, Officers and Directors, Elections, Annual General Meetings

facts:

The appellant had been elected to serve as Vice-Chair of the Board of the respondent for a six-year term and was under the impression he would become the next Chair of the Board and not have to be re-elected each year under Article 6 of the Association’s Bylaws (the “Bylaws”). At the February 8, 2020, annual general meeting, Dr. R was elected Chair of the Association.

The appellant appealed the decision of the application judge which upheld the election of the directors and officers of the respondent. The appellant first argued that Article 6 of the Bylaws, read as a whole, provided for the entitlement for the incumbent Vice-Chair to become the next Chair of the organization. The appellant’s second argument was that Dr. R’s nomination was irregular as she submitted her nomination form less than 28 days prior to the annual general meeting, as required under section 6.6 of the Bylaws.

issues:

(1) Did the application judge err in interpreting Article 6 of the Association’s Bylaws as a whole?

(2) Did the application judge err by failing to find that Dr. R’s candidacy was irregular?

(3) Was the election irregular because eight new members were admitted to the Association at the annual general meeting without prior vetting or approval by the incumbent Board?

holding:

Appeal dismissed.

reasoning:

(1) No.

The application judge found that the failure to automatically elevate the appellant to Chairman was not an irregularity. The bylaw providing for re-election of “all officers” was clear that all officers are to be re-elected annually and the respondent acted in accordance with its Bylaws.

(2) No.

Any inconsistency between section 6.6 and the manner in which Dr. R was nominated for the Chairman position did not render the election irregular.
Section 6.6 requires the Board of Directors to strike a nomination committee to send nomination forms to all members at least 28 days before the annual general meeting. As a matter of historical practice, the respondent did not follow that process and usually dealt with nominations on the day of the annual general meeting. In the present case, the appellant, as Chair Person Elect, did not strike a nomination committee at least 28 days before the annual general meeting. Further, it would not be appropriate for a candidate to a contested office to be a part of the nomination committee that proposed the candidate for that office.

(3) No.

To the extent there were irregularities, they did not go to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority of the members of the organization.
The respondent’s common practice was to admit new members at the annual general meeting without prior vetting. In any event, it was not necessary to consider the appellant’s argument regarding the new members because the number of new members admitted were too few to have impacted the election.


Florence v. Benzaquen, 2021 ONCA 523

[Fairburn A.C.J.O., MacPherson and Gillese JJ.A.]

Counsel:

D. Embury and D.M. Pacheco, for the appellants

J.T. Curry, B.F. Morrison and S.M. Blakeley, for the respondent

Keywords: Torts, Negligence, Wrongful Life, Duty of Care, Proximity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), Family Law Act, R.S.O. 1990, c. F.3, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, Paxton v. Ramji, 2008 ONCA 697, Liebig v. Guelph General Hospital, 2010 ONCA 450, Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, 688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Edwards v. Law Society of Upper Canada, 2001 SCC 80, Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), aff’d (2004), 26 C.C.L.T. (3d) 246 (Ont. C.A.), X and Y (By Her Tutor X) v. Pal, [1991] NSWCA 302

facts:

DF started taking Serophene, a fertility drug, in early July 2007. She had been attempting to conceive for only a few weeks. She became pregnant with triplets in late July 2007 and gave birth prematurely at 26 weeks. The Appellants, the three children, have serious disabilities. The Respondent was DF’s gynecologist from 2004 to 2007 and had prescribed the Serophene. A claim was brought by the Appellants against the Respondent in negligence.

The Respondent moved to the strike the claim of the Appellants under Rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that it disclosed no reasonable cause of action. The motion judge struck the Appellants’ claim because it was not recognized at law; specifically, that doctors did not owe a duty of care to a future child for negligence that occurred pre-conception.

issues:

(1) Did the motion judge fail to apply the Anns test to the scope of the claim?

(2) Did the motion judge fail in her application of Bovingdon and Paxton?

(3) Did the motion judge fail to characterize the claims as ones for wrongful life and categorically denying them?

(4) Should the Appellants be afforded the opportunity to present a full factual and evidentiary record at trial before the court decides whether their claims should be recognized at law?

holding:

Appeal dismissed, Fairburn A.C.J.O. dissenting.

reasoning:

(1) No.

The Appellants argued that the motion judge mischaracterized their claim and that the correct characterization of the proposed duty of care was that the Respondent owed the Appellants a duty of care to not prescribe a clinically contraindicated fertility drug to DF. The Appellants conflated the standard of care owed by the Respondent to DF with a novel duty owed to themselves pre-conception. The Court held that the Anns analysis conducted by the motion judge correctly demonstrated that an alleged breach of the standard of care owed to DF was not relevant in analyzing the duty of care owed to the Appellants.

(2) No.

The Appellants argued that there was a factual distinction between their claim and the relevant case law. The Court agreed with the motion judge that the Appellants’ claim was factually similar to Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2 and Paxton v. Ramji, 2008 ONCA 697 for the purpose of the Anns test. In Bovingdon, a doctor prescribed a fertility drug that resulted in twins being born premature and disabled. The Court in that case stated that the doctor did not owe a duty of care to the twins. In Paxton, a doctor prescribed an acne medication with the understanding that the patient’s partner had a vasectomy. Again, this Court held that the doctor did not owe a duty of care to the future child. In each of these cases, the proposed duty was the same as in the case at bar. The motion judge did not err in relying on the reasoning in Bovingdon and Paxton as she was required by the principle of stare decisis to adhere to legal principles established in the relevant case law.

The Court held that from a proper review of the case law, the motion judge conducted a meaningful Anns analysis. She found that doctors who prescribe fertility medication should reasonably have the mother’s unconceived children in their contemplation. However, to raise a prima facie duty of care, the relationship between the Respondent and the Appellants, as unconceived babies, must also be sufficiently proximate. The relationship lacked sufficient proximity because the doctor cannot take instruction from nor advise the unconceived child: Paxton, at para. 75. The motion judge also noted that there were policy considerations at stage one of the Anns test. Namely, finding that a doctor owes a duty of care to an unconceived child could create a conflict of interest in terms of the treatment offered to the patient: Paxton, at para. 76. Accordingly, the Court held that the motion judge did not err in adopting that reasoning.

(3) No.

The Court rejected the Appellants’ argument that the motion judge struck their claim simply because they were wrongful life claims. The motion judge explicitly acknowledged that it was undecided whether the courts would necessarily dismiss every claim for wrongful life: Bovingdon, at para. 73. The claim was not struck because they were labelled as wrongful life claims. After conducting the Anns analysis, the motion judge correctly found that it was plain and obvious that the claims were not viable in law.

(4) No.

Striking claims with no reasonable chance of success under Rule 21 is essential to effective and fair litigation: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at para. 19. The Appellants argued that a trial was required to have the court properly address the policy issue of whether a doctor should owe a duty of care to an unconceived child. However, the Court stated that it was settled law in Ontario that there was no duty of care to a future child if the alleged negligence by a healthcare provider took place prior to conception: Liebig v. Guelph General Hospital, 2010 ONCA 450, at para. 11. The motion judge confirmed this through her Anns analysis. Therefore, the Court dismissed the Appellants’ argument.

reasoning of the dissent (Fairburn A.C.J.O.):

(1) Not considered.

(2) Yes.

Fairburn A.C.J.O. disagreed with the majority’s interpretation of Bovingdon and Paxton. The factual distinction between these cases and the one at bar was that the prescribed drug was contraindicated, meaning that, in the circumstances, no non-negligent doctor would have prescribed the drug. In Bovingdon, the doctor met the standard of care if the patient understood the risk of taking the prescribed drug. Therefore, the drug was not contraindicated: Bovingdon, at para. 59. In Paxton, before prescribing the drug, the doctor took all reasonable steps to ensure that the patient was not going to get pregnant. Therefore, the drug was also not contraindicated.

(3) No.

Fairburn A.C.J.O. agreed with the majority that the motion judge did not characterize the Appellants’ claim as one of wrongful life.

(4) Yes.

Fairburn A.C.J.O. disagreed with the majority’s conclusion that it was settled law that a doctor does not owe a duty of care to a future child pre-conception. In Bovingdon, the Court explicitly left open whether such a duty may exist in different circumstances: Bovingdon, at para. 74. Therefore, a trial was necessary to determine if such a duty was owed when a contraindicated drug was prescribed. If it turned out that no non-negligent doctor would have prescribed Serophene, then there would be no conflict of interest between the mother and future child because the mother’s “choice” was not relevant as there was no choice at all. Expert evidence at trial was required to make this determination.

Furthermore, Paxton left open the question of whether a doctor can be in a proximate relationship with a future child pre-conception: Paxton, at para. 53. The majority stated that Liebig settled this question. Fairburn A.C.J.O. disagreed, as the statements made in Liebig need to be read considering the specific issues being decided. Liebig was about a claim in negligence for conduct during the labour and delivery process. As Liebig was decided with respect to a different duty, it could not be interpreted to have answered the question that Bovingdon and Paxton explicitly left open. The Court specifically went on to state that a court should be cautious about laying down principles that are not required to be decided in the case at hand: Liebig, at para. 19.

Lastly, Fairburn A.C.J.O. disagreed with the motion judge’s proximity analysis. Proximity was not necessarily broken because the doctor could not take instructions from or advise the future child. This proposition would make Liebig wrongly decided because a doctor cannot advise or seek instructions from a baby during the delivery process either. For these reasons, the issue at bar is not settled law, and and the claim should not be struck under Rule 21 at the pleadings stage.


Canadian Union of Postal Workers v. B’nai Brith Canada, 2021 ONCA 529

[Tulloch, Nordheimer and Jamal JJ.A.]

Counsel:

D. Elmaleh and A. Rosenberg, for the appellants

D. Migicovsky and K.M. Pagé, for the respondent

facts:

The Respondent is a public sector union. The Respondent supported a boycott of Israeli products.  The Appellant is a charitable organization representing the Canadian Jewish community. The Appellants authored press releases that the Respondent alleged were defamatory.

A member of the Respondent had complained to the Appellants about the Respondent’s support of the boycott. The Appellants then discovered that the Respondent had worked on a joint project with the Palestinian Postal Service Workers Union (“PPSWU”). The Appellants then found a Facebook page run by a PPSWU member which praised terroristic and anti-Israel activities.

The Appellants emailed the Respondent and asked for comments on its affiliation with the PPSWU.  The Appellants asked for a response by the next day. The Respondent did not respond. The Appellants published two press releases that became the basis the defamation action. The releases stated that the PPSWU glorified terrorism and that the Respondent had aligned itself with extremism. Further, that the Respondent had refused to comment on this and that the Respondent’s union dues may be used to support organizations that want to see Jewish and Israeli members killed.

The Respondent alleged that the publications claimed that it supported terrorism and was anti-Semitic. The Appellants responded by filing a statement of defence and, subsequently, bringing an Anti-SLAPP motion to have the action dismissed under s. 137.1 of the Courts of Justice Act.

The motion judge dismissed the Appellants’ motion. He found that the matter was of public interest, the Respondent had a “solid case” for defamation, and that there were serious flaws in the Appellants’ defence.

issues:

(1) Did the motion judge err in law and fact in the s. 137.1(4)(a)(ii) analysis relating to the Appellants’ defences to the alleged defamation?
(2) Did the motion judge err by failing to undertake the balancing required under s. 137.1(4)(b)?

holding:

Appeal dismissed.

reasoning:

(1) No

Subsections 137.1(3) and (4) of the Courts of Justice Act provide the following test on an anti-SLAPP motion:

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.
(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,
(a) there are grounds to believe that,
(i) the proceeding has substantial merit, and
(ii) the moving party has no valid defence in the proceeding; and
(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

First, the Appellants claimed that the motion judge applied the wrong legal test under s. 137.1(4)(a)(ii) when he noted that “[t]he defences which have been raised by [the Appellants] are not certain to be successful”.

The Court held that the motion judge did not err in stating the test. The motion judge’s statement instead reflected the finding that there were grounds to believe that there was no valid defence. The motion judge articulated and applied the correct test, consistent with the Supreme Court’s articulation of it in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22. The motion judge stated that the Respondent had to satisfy him that there are grounds to believe that the Appellants had no valid defence, which he explained means that “a reasonable trier of fact could conclude that none of the pleaded defences would succeed at trial”. It was not necessary to answer that question conclusively at that preliminary state of litigation.

Second, the Appellants asserted that in applying s. 137.1(4)(a)(ii) the motion judge made several findings unavailable to him on the record, and that he erred in evaluating the defences of justification, fair comment, and responsible communication and in finding that the appellants may have acted with malice.

The Court stated it found no reviewable error in the motion judge’s findings. The motion judge was thus entitled to find that there were grounds to believe that the defence of justification would fail, as the Appellant’s statements rested on problematic source material. Further, the motion judge’s findings that the defences of fair comment and responsible communication were likely to fail were grounded in the record.

Finally, the Appellants asserted that the motion judge erred in stating that malice may undermine the Appellants’ defences. Malice may be established by reckless disregard for, or indifference to, the truth, spite or ill-will, or any indirect or ulterior motive: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. The motion judge stated that he was “not … making a finding of malice”. He merely concluded that there was evidence before him that “may support such a finding”. Therefore, the Court found that there was no error in the motion judge’s approach or conclusion.

(2) No

The Court did not accept the Appellant’s submissions on this matter. It was not disputed that the motion judge set out the correct balancing test under s. 137.1(4)(b). The motion judge explained that the balancing under s. 137.1(4)(b) “asks the court to consider if the harm potentially suffered by the plaintiff is trivial or not and if it is serious to consider whether it is in the public interest to deny the plaintiff a remedy in the name of freedom of speech.”

The motion judge considered the harm suffered by the Respondent to be significant. The motion judge cited Lascaris v. B’nai Brith Canada, 2019 ONCA 163, which found that accusations of supporting terrorism are highly damaging and serious. Accordingly, the Court was satisfied that the motion judge considered the harm to the Respondent from the Appellant’s defamation to be serious.

The Court was also satisfied that the motion judge correctly weighed the potential harm suffered by the Respondent with, in the name of freedom of speech, the public interest in denying the Respondent’s ability to seek a remedy. There was also no basis to conclude that the Appellants’ speech had indicia of a SLAPP sufficient to materially affect the outcome of the weighing exercise.


Eisen v. 2293398 Ontario Inc, 2021 ONCA 537

[Thorburn J.A. (Motions Judge)]

Counsel:

S. D. Hwang, for the moving party

J. A. Riewald, for the responding party

facts:

The respondent holds a mortgage against a property registered to the appellant/ moving party. The appellant brought an urgent motion for an order:

1. staying the decision of the motion judge on March 15, 2021, refusing to set aside the default judgment signed on January 21, 2021, pending appeal;
2. staying the writ of possession, dated March 17, 2021, and the enforcement of the order to vacate the premises, dated July 13, 2021, pending appeal; and
3. allowing the appellant to repossess the property pending appeal.

The appellant has since been evicted and is living elsewhere. The only remaining issue is the request for an order for repossession of the property.

The appellant charged the property in question in 2012 for two years and secured the sum of $1.6 million at 8.5% interest. By 2019, significant municipal tax arrears had accumulated against the property and the appellant and respondent entered into an agreement to extend the charge for one year from May 15, 2019 to May 16, 2020. The appellant made several payments in accordance with the agreement but on May 15, 2020, the charge matured and principal, interest, and expenses had not been paid. On November 13, 2020, the respondent sent the appellant a notice of sale and a statement of claim for possession, The appellant served a notice of intent to defend but no statement of defence was served. On January 15, 2021, respondent’s counsel requested a defence, but no statement of defence was filed. On January 21, 2021, default judgment was obtained and served on the appellant on February 3, 2021. In February the appellant advised that it would move to set aside default judgment, which was then dismissed on March 15, 2021. On April 20, 2021, the appellant filed a Notice of Appeal of Koke J.’s decision refusing to set aside default judgment and the appellant was evicted on July 13, 2021.

issues:

(1) Did the motion judge err by refusing to set aside the default judgment?

holding:

Motion dismissed.

reasoning:

(1) No.

It was not in the interests of justice for the appellant to retake possession of the property. When considering whether to grant a stay or interlocutory injunction pending appeal, the overarching consideration is whether it would be in the interests of justice. This is determined by considering three factors: (1) the merits of the case and whether there is a serious question to be tried; (2) whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment of which of the parties would suffer greater harm on the balance of convenience.

The Court found that: (1) although the threshold is low, the appellant’s case on the merits was not strong; (2) on the evidence, the appellant had not demonstrated irreparable harm; and (3) the balance of convenience favoured the respondent, as the respondent was at risk of losing their security due to the long history of arrears.


SHORT CIVIL DECISIONS

Amrane c. Abraham, 2021 ONCA 536

[Thorburn J.A (motion judge)]

Counsel:

T. A., in person

N. Rolfe, for the respondent

Keywords: Civil Procedure, Appeals, Perfection, Extension of Time, Canadian Charter of Rights and Freedoms, City of Toronto Act , 2006, SO 2006, vs. 11, Schedule A, Ontario Works Act , 1997, SO 1997, c. 25 Appendix A, Vancouver (City) v. Ward , 2010 SCC 27


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.