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Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 16, 2023.

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In Moran v. Fabrizi, the appellant, TM, was injured in a car accident as the passenger of a car being driven by EI.  The respondent, OF, ran a red light causing the car accident. TM sued OF, EI and TM’s mother, the car’s owner. TM settled for $220,000.  OF then sued DC in a third party action seeking contribution and indemnity of the settlement amount claiming DC had engaged in acts of violence (road rage) preceding the accident. OF claimed that DC’s actions contributed to OF running the red light.  The trial judge found DC to be 50 percent responsible for causing TM’s injuries and required him to indemnify OF for $110,000. DC argued that the trial judge erred in the application of the test for causation.

The Court found that the trial judge accurately set out the law of causation in Clements v. Clements, noting that the trial judge’s language of application tracked closely with DC’s assertion that “[I]nherent in the phrase ‘but for’ is a requirement that [DC’s] negligence was necessary to bring about the injury.”  DC argued that OF did not succeed in making out the ‘agony of the moment’ (emergency) defence at trial and so DC’s behaviour could not in law be a cause of the accident.  The Court clarified that the doctrine can provide a defence that goes to the standard of care element of negligence. The defendant can use it as a shield against responsibility for conduct in a situation of emergency or panic. However, the doctrine does not have any bearing on the causation analysis. The Court upheld the trial judge’s decision.

Other topics this week included failing to close on a APS for land, stay pending appeal in a very contentious estates dispute involving a 100 year old litigant represented by a litigation guardian, and the partial lifting of an automatic stay pending appeal on the basis of undue hardship in a corporate divorce dispute.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferriera
Blaney McMurtry LLP
416.597.4895 Email

Table of Contents

Civil Decisions

Hrovic v. Hrovic, 2023 ONCA 27

Keywords: Corporations, Family Law, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Lifting of Automatic Stay, Rules of Civil Procedure, r. 63.01(1), r. 63.01(2), r. 63.01(5), Ryan v. Laidlaw Transportation Ltd. (1994), 19 O.R. (3d) 547 (Ont. C.A.), Horeca Financial Services v. Light, 2014 ONCA 811, SFC Litigation Trust v. Chan, 2018 ONCA 710, Mortimer v. Cameron, [1993] O.J. No. 4169 (C.A.)

Gefen v. Gefen, 2023 ONCA 19

Keywords: Wills and Estates, Capacity, Estate Trustees During Litigation, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Substitute Decisions Act, S.O. 1992, c. 30, s. 22, Rules of Civil Procedure, r. 7.03, 39.03, Gefen Estate v. Gefen, 2022 ONCA 174, Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281

Nguyen v. Zaza, 2023 ONCA 34

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Time of the Essence, Deposits, Forfeiture, 1854329 Ontario Inc. v. Cairo, 2022 ONCA 744, 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, Domicile Developments Inc. v. MacTavish (1999), 175 D.L.R. (4th) 334 (Ont. C.A.), Benedetto v. 2453913 Ontario Inc., 2019 ONCA 149, R. v. R.E.M., 2008 SCC 51

Moran v. Fabrizi, 2023 ONCA 21

Keywords: Torts, Negligence, Motor Vehicle Accident, Causation, But For Test, Standard of Care, Defences, “Agony of the Moment”, Insurance Coverage, Priority Dispute, Negligence Act, R.S.O. 1990 c. N. 1., Bell Canada v. Cope (Sarnia) Ltd., (1980), 31 O.R. (2d) 571 (C.A.), 119 D.L.R. (3d) 254, Pet Valu Inc. v. Thomas, 2004 CarswellOnt 370 (S.C.), J.K. v. Ontario, 2017 ONCA 902, Clements v. Clements, 2012 SCC 32, Isaac Estate v. Matuszynska, 2018 ONCA 177, Report on Contribution Among Wrongdoers and Contributory Negligence (Toronto: Ontario Law Reform Commission, 1988), Erika Chamberlain & Stephen Pitel, eds, Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Carswell, 2022), Fleming in the Law of Torts, 6th ed. (Sydney: Law Book Co., 1983)

Short Civil Decisions

Royal Bank of Canada v. Hogarth, 2023 ONCA 30

Keywords: Civil Procedure, Summary Judgment, Deference

LeBlanc v. Alghamdi, 2023 ONCA 37

Keywords: Civil Procedure, Vexatious Litigants, Frivolous, Vexatious and Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s.140, s.19, s. 140, Rules of Civil Procedure, r. 59.06

CIVIL DECISIONS

Hrovic v. Hrovic, 2023 ONCA 27

[Coroza J.A. (Motion Judge)]

Counsel:

G.M. Sidlofsky, for the responding party (M53912)/moving party (M53914)
D.A. Taub and S. Mosonyi, for the moving party (M53912)/responding party (M5914)

Keywords: Corporations, Family Law, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Lifting of Automatic Stay, Rules of Civil Procedure, r. 63.01(1), r. 63.01(2), r. 63.01(5), Ryan v. Laidlaw Transportation Ltd. (1994), 19 O.R. (3d) 547 (Ont. C.A.), Horeca Financial Services v. Light, 2014 ONCA 811, SFC Litigation Trust v. Chan, 2018 ONCA 710, Mortimer v. Cameron, [1993] O.J. No. 4169 (C.A.)

Facts:

The underlying action related to a division of a business built by the appellant, DH and respondent, MH. The trial judge was required to determine the respective shareholdings of the parties and the value of that shareholding. The trial judge determined that the respondent held 50 percent of the company and the value of the business was $10,800,000. The Trial Judge ordered that the appellant pay the respondent $5,400,000 to purchase all her shares in the company. The appellant appealed and an automatic stay of the trial order was imposed pursuant to r. 63.01(1) of the Rules of Civil Procedure.

There were two motions before the Court. The first was a motion by which the appellant wanted to file an extended factum of 45 pages (exceeding the 30-page limit).

In the second motion, the respondent requested that the automatic stay pending appeal be lifted in respect of $2,686,437.31. According to the respondent, this amount represented the appellant’s “best position” were he to succeed on all issues in the appeal. In other words, this is the amount that the appellant owes the respondent even taking into account his valuation advanced at trial. The respondent argued that she will suffer financial hardship if the stay is not lifted, and the appellant’s appeal in respect of that amount is not meritorious.

Issues:

(1) Should the order be made allowing the appellant to submit an extended factum (exceeding 30 pages)?

(2) Should the Court lift the automatic stay imposed pursuant to r. 63.01(1)?

Holding:

Motion granted.

Reasoning:

(1) Yes.

The Court was persuaded by the appellant’s submission that there was some complexity to this matter and granted an extension to file a factum that is 45 pages in length, particularly since the respondent took no position. The Court also granted permission for the respondent to file a factum of equal length.

(2) Yes.

The Court noted that an automatic stay should only be lifted in cases of demonstrable and unusual hardship to the respondent, and when a reasonable measure of protection can be afforded to the appellant to allow recovery if the appeal succeeds. The Court reiterated the three principal factors that courts assess to determine whether to lift an automatic stay pending appeal: (1) the financial hardship to the respondent to the appeal if the stay is not lifted; (2) the ability of the respondent to repay or provide security for the amount paid; and (3) the merits of the appeal.

The Court reviewed the decision of SFC Litigation Trust v. Chan, where Brown J.A. held that while the first factor goes to the respondent’s need, the latter two factors reduce the risk that a successful appellant will be forced to bear the loss, rendering the appeal moot. The Court may impose this risk on an appellant in an appropriate case, but there is no reason to do so absent evidence of significant prejudice to the respondent from the stay.

The Court disagreed with the appellant’s argument that the respondent had not provided evidence of financial hardship. The respondent’s unchallenged affidavit stated that on March 1, 2020, the appellant removed her as an officer and director of the business in order to unilaterally run it, and dismissed her. The respondent has commenced a separate lawsuit against the business and the appellant for damages for wrongful dismissal, unpaid salary, and unpaid vacation pay, among other things. The respondent argued that the trial judge’s finding about her stake in the business raised the question about whether the appellant had any legal authority to terminate her from the business. Significantly, the respondent asserted in her affidavit that since her termination, the COVID-19 pandemic made it difficult for her to find a new job because she had been working in a highly specialized field with the business since 1998. She had no income following her termination from the business for more than two years until she began a new job in April 2022. The Court found that these assertions stood unchallenged.

With respect to the second requirement, the Court found that the respondent had not proposed any means of ensuring that the proceeds realized from lifting the stay pending the appeal’s outcome would be secured. That said, the Court found that this factor supported the respondent’s request in the context of the appeal because the appellant’s own position advanced in his draft factum was that the judgment should be set aside, and the appellant should be required to pay $1,874,400 for the respondent’s interest in the company.

As the Court understood his argument, the appellant asserted that any amount owing to the respondent, even on a successful appeal would be offset by substantial costs in the court below and on the appeal. The appellant claimed that he incurred costs in the proceeding below in the amount of $507,327.13 and to date, the costs of the appeal are at about $125,000. The Court noted that the trial judge awarded costs payable to the respondent in the amount of $325,000.

The Court further found that even accepting the appellant’s argument that he should be awarded full recovery of these costs if successful on appeal, would still leave a payment of a substantial amount of money to the respondent. Therefore, the rationale of ensuring that the appellant’s prospect of recovering monies owed to him if successful on an appeal through the mechanism of an automatic stay does not apply when, by his own admission, he would not have to bear the loss, because he acknowledged that this is money that is owed to the respondent to purchase her interest.

The Court further explained that, with respect to the merits of the appeal, the appeal was not particularly a strong one. The Court found that majority of the grounds of appeal took issue with the trial judge’s findings of fact, together with alleged errors of law in making the finding that the respondent was entitled to a 50 percent ownership interest in the business. The Court’s view was that the grounds of appeal were grounded in factual findings and unlikely to succeed.

In sum, the Court found that if the automatic stay imposed by r. 63.01 was intended to offer some protection to an appellant against payments which it might not eventually be obligated to make, thus putting it to the uncertainties of recovery, then the exercise of the Court’s discretion to lift the stay in respect of an amount was appropriate if the risk that the automatic stay seeks to prevent is non-existent.

The Court found that it was in the interests of justice to lift the stay to release some funds to the respondent.


Gefen v. Gefen, 2023 ONCA 29

[George J.A. (Motion Judge)]

Counsel:

B. Salsberg and I. Matckars, for the moving party H.G. (“HG1”)
R. Moldaver, for the moving party H.G.
A. Fishman, for the responding party H.G. (“HG2”)
A. Rabinowitz and S. Blydorp, for S.E., Guardian of Property and Litigation Guardian for H.G.
C. Graham, for the Y.G. Estate

Keywords: Wills and Estates, Capacity, Estate Trustees During Litigation, Civil Procedure, Orders, Appeals, Stay Pending Appeal, Substitute Decisions Act, S.O. 1992, c. 30, s. 22, Rules of Civil Procedure, r. 7.03, 39.03, Gefen Estate v. Gefen, 2022 ONCA 174, Calvert (Litigation Guardian of) v. Calvert (1997), 32 O.R. (3d) 281

Facts:

In 2013, after the death of her husband EG, HG commenced an action against her sons, HG1 and HG2. In that initial action, HG2 and YG (HG’s other child) counterclaimed, and HG1 brought a third-party claim. The trial ended in divided success. While there was no judgment against HG1, Kimmel J. found that he had unconscionably procured approximately $8.66 million of HG’s assets. The appeal of that decision was dismissed by the Court. Kimmel J. also ordered that the Estate (of which HG is the trustee and sole beneficiary) pay more than $1 million in costs to HG1, YG, and HG2.

In 2021, HG2, in his capacity as a creditor of the Estate (by virtue of the unpaid costs award from trial) commenced an application and brought a motion which sought a declaration that HG was incapable of instructing counsel or managing property, and for the appointment of a litigation guardian. On November 4, 2022, the motion judge granted the motion.

After the application was commenced, HG2 sought to compel an examination of HG pursuant to r. 39.03. The motion judge granted the order, observing at the time that it “should not have been necessary” and that the “result of the motion was inevitable”. HG was examined in February 2022 when, at least according to HG2, HG’s counsel, Mr. M, repeatedly, and improperly, interrupted and refused “dozens of basic and essential questions”. While Mr. M did not agree with this characterization, HG2 further claimed that the answers HG did provide were “illogical, tangential, and/or confused”. This led to the capacity assessment, and ultimately the motion judge’s finding that HG was incapable of instructing counsel or managing her property.

The motion judge appointed SE as litigation guardian and guardian of property; ordered costs against Mr. M personally; and restrained Mr. M from representing HG in any proceeding concerning the Estate. She also ordered that HG1 not serve as HG’s attorney or litigation guardian.

HG2 sought to pass over the appointments of HG as the sole Estate Trustee of his father EG’s estate (“Estate”), and the appointment of himself and HG1 as alternate trustees. The Estate is presently being administered by an Estate Trustee during Litigation (“ETDL”) as ordered by Newbould J. on January 27, 2015.

HG and HG1 (“moving parties”) appealed the motion judge’s order, which, inter alia, (1) appointed SE as Litigation Guardian and Guardian of Property for HG; (2) directed SE to attend mediation on HG’s behalf and that he have full authority to settle any objections made by HG (3) removed Mr. M as HG’s counsel of record (in all matters related to the Estate); (4) lifted a September 5, 2022 stay of all litigation in which HG was involved; (5) directed HG1 to pay the costs he had been ordered to pay to that point, within 15 days, and HG to similarly pay all outstanding costs orders within 30 days; and (6) ordered Mr. M to pay $3,500 in costs personally. Pending hearing of their appeal, the moving parties sought a stay of the motion judge’s order.

HG2 opposed the request for a stay, as did YG’s estate, which was owed costs by EG’s estate. SE also opposed a stay, taking the position that because he was fully accountable to the court for any decision he made, or action he took on behalf of HG, there would be no irreparable harm to the moving parties if the motion judge’s order took immediate effect and was operative pending the outcome of the appeal.

Issues:

(1) Is there a serious issue to be tried?

(2) Would the moving parties suffer irreparable harm if the stay was not granted?

(3) Does the balance of convenience test favour granting the stay?

Holding:

Motion dismissed.

Reasoning:

(1) No.

The Court agreed with HG2’s counsel that many of the moving parties’ complaints about the motion judge’s order were procedural in nature, and did not go the merits per se. The Court explained that the argument that the motion judge somehow usurped the authority of one of her judicial colleagues – who was scheduled to hear the main application on a later date – had no relevance or bearing on the issues before the Court. The Court found that the motion judge had the authority to hear the motion and make the order she did. The Court further explained that there was no “error” or procedural misstep that would warrant the Court’s intervention.

The Court also addressed the moving parties’ concerns over the fact that there was no viva voce evidence from Ms. P, the person who assessed HG’s capacity. To this end, the Court pointed out that Mr. M did not swear an affidavit that spoke to HG’s ability to instruct him. The Court found that there was no evidence in support of the position that HG was capable of instructing counsel and noted that the alternative assessor, Mr. C, only formed an opinion as to her capacity to manage property, a lower standard. Thus, the Court found, that in the circumstances, given HG’s age (100 years old) and her examination, and in light of the uncontradicted evidence that she was incapable, the motion judge’s finding that HG lacked capacity to instruct counsel was likely unassailable. Moreover, her strong reasons for preferring Ms. P’s evidence over Mr. C’s likely make her finding that HG lacked capacity to manage her property similarly unassailable.

The Court rejected the moving party’s argument that HG2 lacked standing to seek passing over the appointments of HG. First, the Court noted that on the record it did not appear that HG2’s ability to seek an order passing over HG as estate trustee was argued before the motion judge. Second, pursuant to r. 7.03 and s. 22 of the Substitute Decisions Act, “any person” has standing to seek the appointment of a guardian of property, and any applicant has standing to seek the appointment of a litigation guardian for the respondent in an application. The Court explained that the motion judge had weighed in on this question in her January 19, 2022 endorsement (on a r. 39 motion), and in her June 6, 2022 decision (on HG2’s motion to appoint a capacity assessor). In both instances, HG sought leave to appeal to the Divisional Court, which was denied. Therefore, the Court concluded this was not a serious issue to be heard on appeal.

(2) No.

The Court found that there would be no irreparable harm to either HG or HG1 should Court to deny the request for a stay. HG, who had been found to be incapable, presently has a guardian managing her property (SE). Pending the appeal, SE will continue in this role. SE is an officer of the court who will have to account for every action he takes on HG’s behalf. The Court rejected the argument that, if a stay was not granted, HG would be unable to contest the ETDL’s ongoing passing of accounts. The Court held that this argument continued to ignore SE, the function he served, and his legal obligations.

(3) No.

The Court noted that on a balance of convenience, HG would not be inconvenienced were a stay not granted. As for HG1, the motion judge’s order did not affect his rights. Therefore, the Court held that the balance of convenience favoured allowing the motion judge’s order to take effect and to continue pending the outcome of the appeal.


Nguyen v. Zaza, 2023 ONCA 34

[Zarnett, Thorburn and Copeland JJ.A.]

Counsel:

A. Duggal and G.S. Dhillon, for the appellant
V. Scalisi, for the respondents

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Time of the Essence, Deposits, Forfeiture, 1854329 Ontario Inc. v. Cairo, 2022 ONCA 744, 1179 Hunt Club Inc. v. Ottawa Medical Square Inc., 2019 ONCA 700, Domicile Developments Inc. v. MacTavish (1999), 175 D.L.R. (4th) 334 (Ont. C.A.), Benedetto v. 2453913 Ontario Inc., 2019 ONCA 149, R. v. R.E.M., 2008 SCC 51

facts:

On December 19, 2020, the parties entered into an Agreement of Purchase and Sale (the “APS”) for to the sale of real property. The appellant was listed as the purchaser and the respondent son (“Junior”) was listed as the seller. The APS stated that the closing date was November 15, 2021, and that time was of the essence. The APS was conditional on the appellant arranging financing and a satisfactory home inspection. However, the appellant released both of those conditions by a waiver signed on January 6, 2021.

On January 18, 2021, the respondent father (“Senior”) transferred title to the property to Junior and his wife for nominal consideration. On the closing date, the respondents tendered the documents required for closing. However, the appellant did not tender the purchase price. The motion judge found that at all times the respondents were ready, willing, and able to complete the sale in accordance with the APS.

issues:

(1) Did the motion judge err in her conclusion that the appellant was responsible for the failure to close the sale when she did not tender the purchase price on the closing date?

holding:

Appeal dismissed.

reasoning:

(1) No.

The appellant first argued that, because Senior was allegedly the respondent who signed the APS and held title at that time, Junior was not entitled to require the appellant to complete the sale on the closing date. Further, the appellant argued that her consent was required for transfer of title on January 18, 2021. The Court disagreed. First, the motion judge found, as a fact, that Junior signed the APS. The Court held that this finding was supported by the record and there was no reason to interfere with it. Second, as stated in 1854329 Ontario Inc. v. Cairo, in order for a seller to be entitled to the sale price at closing, the seller need only be in a position to ensure that good title is conveyed to the purchaser. The Court held that the motion judge was correct in finding that there was no requirement to hold title on the date that the APS is signed. Lastly, the Court noted that the appellant was made aware of the change to title and entered into an Amended APS to reflect this change. The closing date remained the same and time continued to be of the essence.

With respect to the Amended APS, the appellant argued that the respondents ought to have provided it earlier than the date of closing. The Court noted that the factual findings of the motion judge did not support this argument. The APS gave the appellant until November 2, 2021 to examine title. The respondents were not made aware that a lawyer was conducting the transaction for the appellant until November 3, 2021. This lawyer did not have a copy of the APS, and on request, counsel for the respondents sent a copy that same day. It was not until then that the appellant’s lawyer requested the Amended APS. On the record before the motion judge, she found that the further delay was on account of the appellant’s lawyer. The Court found no palpable and overriding error with this finding.

The Court concluded that the motion judge correctly held that a seller is entitled to refuse an extension of time to close where a buyer seeks an extension because they do not have financing. Furthermore, in the absence of a specific term in the APS for the disposition of the deposit, the deposit is intended as security for the buyer’s performance of the contract, and is forfeited to the seller if the buyer fails to close.


Moran v. Fabrizi, 2023 ONCA 21

[Lauwers, Paciocco and Zarnett JJ.A.]

Counsel:

F. A. Benedetto and J.C. Rioux, for the appellant
D. Zarek and M. A. Harper, for the respondent

Keywords: Torts, Negligence, Motor Vehicle Accident, Causation, But For Test, Standard of Care, Defences, “Agony of the Moment”, Insurance Coverage, Priority Dispute, Negligence Act, R.S.O. 1990 c. N. 1., Bell Canada v. Cope (Sarnia) Ltd., (1980), 31 O.R. (2d) 571 (C.A.), 119 D.L.R. (3d) 254, Pet Valu Inc. v. Thomas, 2004 CarswellOnt 370 (S.C.), J.K. v. Ontario, 2017 ONCA 902, Clements v. Clements, 2012 SCC 32, Isaac Estate v. Matuszynska, 2018 ONCA 177, Report on Contribution Among Wrongdoers and Contributory Negligence (Toronto: Ontario Law Reform Commission, 1988), Erika Chamberlain & Stephen Pitel, eds, Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Carswell, 2022), Fleming in the Law of Torts, 6th ed. (Sydney: Law Book Co., 1983)

facts:

TM was injured in a car accident. She was a passenger in a minivan driven by her grandmother, EI. OF ran a red light and his car collided with the minivan.  In the main action, TM sued three individuals: OF, as the owner and driver of the car that struck the minivan, EI, who was the driver of the minivan, and TM’s mother as the minivan’s owner. TM did not sue DC (who had engaged in an act of road rage against OF). TM’s action was settled for $220,000. OF sued DC in the third party action seeking contribution and indemnity for the settlement under s. 5 of the Negligence Act.

The fight in the third party action was between OF’s insurer, who settled with TM, and DC’s insurer, over what proportion each policy would be required to contribute to the payment of the settlement. The trial judge found in favour of OF. The trial judge found that DC’s “threats of physical violence amount to intentional tortious conduct” and that “the accident would not have occurred but for DC’s conduct.” The trial judge ultimately found DC to be 50 percent responsible for causing TM’s injuries and required him to indemnify OF for $110,000.

issue:

Did the trial judge err in his understanding and application of the test for causation that applies in determining whether DC “caused or contributed to” the accident in which TM was injured, within the meaning of ss. 1 and 5 of the Negligence Act?

holding:

Appeal dismissed.

reasoning:

No.

The Court held that to trigger third party indemnity under s. 5 of the Negligence Act, there need not be negligence on the part of both parties. One party’s tort can be negligence and the other party’s tort intentional. The fact that DC’s tort was intentional while OF’s tort was negligence had no bearing on whether DC must share OF’s liability under s. 5 of the Negligence Act.

The Court held that it was necessary for OF to prove that DC’s tortious conduct was causally linked to TM’s injuries. The Court noted that the trial judge accurately set out the law of causation from Clements v. Clements (“Clements”). The Court held that the trial judge’s language of application tracked closely with DC’s assertion that “[I]nherent in the phrase ‘but for’ is a requirement that [DC’s] negligence was necessary to bring about the injury.”  Accordingly, the Court held that the trial judge applied the right test to the facts.

Further, the Court saw no basis in the trial judge’s sparse comment for doubting the conviction in his determinative finding on the “but for” test. The Court held that the trial judge was simply adding the superfluous observation that, had he been unable to make a factual causation finding by applying the “but for” test, DC would still not have escaped liability because the “material contribution” test would have applied and would have been satisfied. The Court saw no basis or need to apply the “material contribution” test, noting that this was not a case where “special circumstances” posed by “difficulties of proof that multi-tortfeasor cases may pose” require the “robust and common sense application of the ‘but for’ test of causation” to be replaced by the “material contribution” test, as per Clements.

DC argued that OF’s own actions in responding to DC’s aggression constituted an intervening act that broke the causal link between DC’s actions and TM’s injuries.  The Court rejected this argument, stating that minimizing DC’s role as merely an ancillary aspect of the ultimately negligent decision of OF did not absolve DC, since the trial judge had found that OF’s negligent decision was not the one and only effective cause of TM’s injuries.

DC argued that since OF did not succeed in making out the ‘agony of the moment’ defence at trial, DC’s behaviour could not in law be a cause of the accident.  The Court stated that the doctrine can provide a defence that goes to the standard of care element of negligence. The defendant can use it as a shield against responsibility for conduct in a situation of emergency or panic. The doctrine can be used to excuse a defendant’s conduct that might otherwise be considered negligent.

The Court held that in the circumstances, only OF could have used the doctrine of agony of the moment or emergency as a defence, but he did not plead it. DC could not raise this defence against liability for the obvious reason that he created whatever emergency there was. Similarly, DC could not rely on the trial judge’s implicit rejection of OF’s “agony of the moment” defence to argue that the causal chain between DC’s intentional tortious behaviour and TM’s injuries is broken or too remote. The “agony of the moment” defence only goes to the standard of care element of negligence (as a reasonable motorist). The doctrine did not have any bearing on the causation analysis.

The Court concluded that it was not open to DC to capitalize on the doctrine of “agony of the moment” to escape liability. Further, OF continued to owe a duty of care towards TM and failed to meet the applicable standard of care. But that does not absolve DC nor does OF’s breach of the duty of care constitute an intervening cause. The Court found that that the appellant framed his grounds of appeal as errors of law, but in substance, the submissions alleged errors of fact. The trial judge correctly found that the appellant’s conduct was a “but for” cause of the plaintiff’s injuries. Further, the Court found that the appellant failed to identify any reviewable errors with the trial judge’s finding.


SHORT CIVIL DECISIONS

Royal Bank of Canada v. Hogarth, 2023 ONCA 30

[Zarnett, Thorburn and Copeland JJ.A.]

Counsel:

G.H. and N.C.L., acting in person
J. Satin, for the respondent

Keywords: Civil Procedure, Summary Judgment, Deference


LeBlanc v. Alghamdi, 2023 ONCA 37

[Feldman, Lauwers and Roberts JJ.A.]

Counsel:

L.A., acting in person
J.F. Lalonde, for the respondents

Keywords: Civil Procedure, Vexatious Litigants, Frivolous, Vexatious and Abuse of Process, Courts of Justice Act, R.S.O. 1990, c. C.43, s.140, s.19, s. 140, Rules of Civil Procedure, r. 59.06


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 over 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 over two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, partnership, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles complex estates and matrimonial litigation involving disputes over property and businesses, as well as professional discipline and professional negligence matters for various types of professionals. In addition, John represents amateur sports organizations in contentious matters, and also advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.