In Ontario Teacher Candidates’ Council v. Ontario (Education), the Court of Appeal set aside the order of the Divisional Court. The Divisional Court had erred in finding that certain math testing of teacher candidates was unconstitutional because it discriminated against racialized candidates. The evidence relied upon by the Divisional Court had been incomplete and therefore inconclusive.

In Elkins v. Van Wissen, the Court addressed allegations of bad faith evictions under the Residential Tenancies Act upon the sale of a rental home.

Willick v Willard is a Medmal case. A patient who received medical treatment after a fall during renovation work tragically died of a ruptured spleen a few weeks later. The Court upheld the trial judge’s decision that both treating doctors had met the standard of care. The patient had not presented with evidence of a ruptured spleen.

Other topics covered this week included breach of fiduciary duty/conspiracy and security for costs.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Ontario Teacher Candidates’ Council v. Ontario (Education), 2023 ONCA 788

Keywords: Regulated Professions, Teachers, Constitutional Law, Charter Rights, Equality, Canadian Charter of Rights and Freedoms, ss.1, 15, Ontario College of Teachers Act, 1996, S. O. 1996, c. 12, Fraser v. Canada (Attorney General), 2020 SCC 28, Ontario v. G, 2020 SCC 38, R. v. Sharma, 2022 SCC 39, Quebec (Attorney General) v. Alliance du personnel professional et technique de la santé et des services sociaux, 2018 SCC 17, Griggs v. Duke Power Co., 401 U. S. 424 (1971), British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, Withler v. Canada (Attorney General), 2011 SCC 12

Elkins v. Van Wissen, 2023 ONCA 789

Keywords: Real Property, Landlord and Tenant, Residential Tenancies, Grounds for Termination and Eviction, Sale and Occupation by Purchaser, Bad Faith, ResidentialTenancies Act, 2006, S.O. 2006, c. 17, ss. 49(1), 57(1)(b), TST-94914-18 (Re), 2019 CanLII 134579 (Ont. L.T.B.), Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th), Price v. Turnbull’s Grove Inc., 2007 ONCA 408, CET-67272-17 (Re), 2017 CanLII 70040 (Ont. L.T.B.), Duarte v. 2132338 Ontario Ltd., 2021 CanLII 146522 (Ont. L.T.B.), TST-10645-19 (Re), 2020 CanLII 31285 (Ont. L.T.B.), TST-42753-13-RV (Re), 2014 CanLII 28557 (Ont. L.T.B.), R. v. Sheppard, 2002 SCC 26, Hanna & Hamilton Construction Co. Ltd. v. Robertson, 2021 ONCA 660

Bank of Nevis International Limited v. Kucher, 2023 ONCA 793

Keywords: Civil Procedure, Security for Costs, Jurisdiction, Forum Non Conveniens, Rules of Civil Procedure, rules 56.01, 61.06(1), Thrive Capital Management Ltd. v Noble 1324 Queen Inc., 2021 ONCA 474, NDrive, Navigation Systems S.A. v Zhou, 2022 ONCA 39, Tsai v Dugal, 2021 ONCA 170

Willick v. Willard, 2023 ONCA 792

Keywords: Torts, Negligence, Medmal, Standard of Care, Causation, Civil Procedure, Appeals, Sufficiency of Reasons, Evidence, Credibility, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, Calin v. Calin, 2021 ONCA 558, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, R. v. Dinardo, 2008 SCC 24, Sacks v. Ross, 2017 ONCA 773, R. v. Richardson (1992), 9 O.R. (3d) 194 (C.A.), R. v. Sheppard, 2002 SCC 26, R. v. G.F., 2021 SCC 20, Farej v. Fellows, 2022 ONCA 254, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Vokes Estate v. Palmer, 2012 ONCA 510, Iannarella v. Corbett, 2015 ONCA 110

Canadian National Railway Company v. Holmes, 2023 ONCA 800

Keywords: Torts, Conspiracy, Breach of Fiduciary Duty, Joint and Several Liability, Remedies, Constructive Trust, Disgorgement, Punitive Damages, Civil Procedure, Stay of Proceedings, Rules of Civil Procedure, rule 61.04(1), Cirillo v. Ontario, 2021 ONCA 353, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404

Short Civil Decisions

Fehr v. Gribilas, 2023 ONCA 791

Keywords: Costs

Heliotrope Investment Corporation v. Beach, 2023 ONCA 794

Keywords: Costs

CIVIL DECISIONS

Ontario Teacher Candidates’ Council v. Ontario (Education), 2023 ONCA 788

[Doherty, Nordheimer and Monahan JJ.A.]

Counsel:

Y. Ranganathan, R. Amarnath and M. Stevenson, for the appellants

M. Estabrooks and W. Tamrat, for the respondents

M. Horner and N. Farahani, for the intervener Ontario Human Rights Commission

S. Luft and J. Gutman, for the intervener Ontario Secondary School Teachers’ Federation

G. Avraam, J. Bernardo and R. Khan, for the intervener Canadian Constitution Foundation

Keywords: Regulated Professions, Teachers, Constitutional Law, Charter Rights, Equality, Canadian Charter of Rights and Freedoms, ss.1, 15, Ontario College of Teachers Act, 1996, S. O. 1996, c. 12, Fraser v. Canada (Attorney General), 2020 SCC 28, Ontario v. G, 2020 SCC 38, R. v. Sharma, 2022 SCC 39, Quebec (Attorney General) v. Alliance du personnel professional et technique de la santé et des services sociaux, 2018 SCC 17, Griggs v. Duke Power Co., 401 U. S. 424 (1971), British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, Withler v. Canada (Attorney General), 2011 SCC 12

facts:

All certified teachers in Ontario may be assigned to teach math to students in Grade 6 or below. To qualify to teach math beyond Grade 6, additional qualifications in math are generally required. However, a teacher without additional qualifications in math can be asked to teach to students in Grades 7 to 12 based on regulations under the Ontario College of Teachers Act, 1996, (the “OCTA”) that permit a principal to assign a teacher to teach in a division or subject not listed on their certificate by agreement of the teacher and principal, with the approval of a supervisory officer. Further, due to the competitive nature of teaching positions, newly certified teachers may find that the only available opportunities are positions that require them to teach math.

In response to a marked decline in Ontario elementary students’ math scores between 2015 and 2019, as measured by the Education Quality and Accountability Office (“EQAO”), Ontario amended the OCTA to add a requirement that teacher candidates successfully complete any prescribed examinations relating to mathematics before obtaining a certificate of qualification from the College. The government subsequently enacted a regulation mandating the EQAO to develop and implement the Math Proficiency Test (“MPT”).

The MPT was officially administered in two testing windows in 2021, from May 10 – August 20 and September 27 – December 15, a 27-week period.

The Divisional Court held that the Ontario College of Teachers (the “College”) should certify candidates without regard to their results on the MPT. Finding that the MPT violated s. 15(1) of the Charter, is not justified under s. 1 and is unconstitutional, and the Court declared both O. Reg. 271/19, Proficiency in Mathematics, and s. 18(1)(c) of the OCTA, to be unconstitutional and of no force and effect.

The Divisional Court made its findings based on the July 2021 Data. The results from those who provided demographic information reflected significant disparities in relative success rates for test takers in different race categories. For example, as of July 26, 2021, 70% of Black candidates and 71% of Indigenous candidates passed the MPT, as compared with 92% of East/Southeast Asian candidates and 91% of White candidates. However, the EQAO noted that these differences needed to be interpreted with caution given the small numbers of test takers from certain demographic groups, including Indigenous and Latinx.

The appellants appealed the December 17, 2021 Order of the Divisional Court declaring that MPT infringes s. 15(1) of the Charter and cannot be justified under s. 1.

issues:

1. Did the Divisional Court err in finding a prima faciebreach of s. 15(1) of the Charter, either at Step 1 or Step 2 of the s. 15 inquiry?
2. Did the Divisional Court err in holding that any infringement of s. 15(1) caused by the MPT is not justified under s. 1 of the Charter?

holding:

Appeal allowed.

reasoning:

1. Yes,

There are two requirements that must be satisfied by a claimant seeking a finding that a challenged law or state action infringes s. 15(1) of the Charter: (i) the challenged law or state action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground; and (ii) the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating or exacerbating disadvantage.

Where the claimant alleges that a law which is neutral on its face violates s. 15 because of its adverse effects or impacts, the claimant must show that the law has a “disproportionate impact” on members of a protected group. Such a disproportionate impact can be proven in different ways, including if there are clear disparities in how a law affects the claimant’s group as compared to other comparator groups.
Step 2 of the s. 15 inquiry, whether the distinction imposes a burden or denies a burden in a discriminatory manner, is satisfied if the challenged law creates a distinction that reinforces, perpetuates or exacerbates a disadvantage that exists independently of the impugned distinction.

(1) The Divisional Court Erred in Finding that the MPT Has a Disproportionate Adverse Impact on Entry to the Profession for Racialized Teacher Candidates

The Divisional Court based its findings largely on results from the first seven weeks of the administration of the MPT. This data was both incomplete and preliminary and provided an insufficient basis for the findings. The data was incomplete in the sense that less than half of the candidates who would eventually write the MPT in 2021 had done so by July 26, 2021. A further complication was that not all of those who wrote the test by July 26, 2021, had completed the voluntary demographic questionnaire. This meant the number of candidates who had self-identified as members of racialized groups as of that date was quite small, representing a fraction of the total number of MPT test takers in 2021.

The Divisional Court refused the appellants’ invitation to await further results before making a binding determination on two grounds: (i) there were additional burdens borne by candidates who had to rewrite the test, including a delay in being admitted to the College, which were disproportionately imposed on racialized candidates; and (ii) awaiting further results was wrong because it meant that more racialized candidates would be required to attempt and fail the MPT.

The Court held that the Divisional Court made palpable and overriding errors in these findings and determined that the two grounds relied upon did not justify ruling on the constitutionality of the MPT. The difficulty with the first justification, (i) the adverse impact on racialized candidates from having to rewrite the MPT, was based on a lack of evidence to support it. The second justification, (ii) that any delay simply meant that more racialized candidates would be required to attempt and fail the MPT, was an inference that was unavailable on the facts. The Court noted that in the end, the opposite turned out to be true.

The Court concluded that given the preliminary and incomplete record, the respondents failed to discharge their onus under s. 15. The Divisional Court’s finding that the MPT violated s. 15 of the Charter could be set aside on this basis alone.

(2) The Evidence from the 2021 Administration of the MPT Failed to Establish that it has had a Disproportionate Adverse Impact on Racialized Candidates

No clear and consistent disparities were evident from the first administration of the MPT in 2021. Not only were the differences in success rates between racialized and non-racialized candidates much smaller than in the relevant precedents, but the December 2021 Data was not final. This is because approximately 300 of the candidates who unsuccessfully wrote the test in 2021 did not attempt the test a second time.
A high proportion of candidates who did not pass the test on their first attempt succeeded in subsequent attempts by December 2021. What is unknown is: (i) when during 2021 these 300 candidates who did not pass the test on their first attempt actually wrote the test; (ii) why they did not attempt to rewrite it by December 2021; and (iii) whether any of them would have rewritten the test in 2022 had they been provided with the opportunity to do so. Had the MPT been offered in 2022, it is possible that some proportion of those 300 candidates would have attempted and passed the test, thereby raising the overall success rate for both racialized and non-racialized candidates beyond that observed in the December 2021 Data. Ignoring the results of those who have passed the MPT but required more than one attempt to do so does not accurately reflect the impact of the test on entry to the profession.

(3) The Respondents Did Not Establish that the MPT is Discriminatory by Having the Effect of Reinforcing, Perpetuating or Exacerbating Disadvantage

The Court found that based on the record, the respondents did not establish that the MPT was discriminatory, in the sense that it demonstrably perpetuated, exacerbated or reinforced the existing disadvantage of racialized teachers in Ontario.
Nevertheless, despite the clear evidence of disadvantage associated with their race experienced by the claimant group at all stages of their education, the Court was unable to conclude, based on the record, that the MPT would reinforce, perpetuate or exacerbate that disadvantage.

Ontario argued that it is not discriminatory to require professionals to demonstrate competence in a subject needed to properly perform their jobs, nor is it a disadvantage. Moreover, the frequent administration of the MPT to allow multiple retakes, coupled with only informing the Registrar when a candidate successfully completes the MPT, takes into account the needs of those candidates who may not pass on a first attempt. It was to be kept in mind that the MPT was based on questions drawn from EQAO exams administered to Ontario students in grades 3, 6 and 9.

The Court found that the Divisional Court erred in law by relying on general evidence on standardized testing without regard to the fuller context of the content of the MPT and its administration, as is required at step two of the s. 15(1) inquiry. Had it done so, it would have found insufficient evidence to support a breach of the claimants’ s. 15 rights.

2. Undecided

The Court found it unnecessary to consider whether, had there been a finding of a violation of s.15, any such violation could have been justified under s.1 of the Charter.

Elkins v. Van Wissen, 2023 ONCA 789

[Gillese, Benotto and Copeland JJ.A.]

Counsel:

R. Hardy, for the appellant M.E.

No one appearing for the appellant J.F.

A. Dos Reis, for the respondent J.V.W

No one appearing for the respondent G.V.W

No one appearing for the respondent M.V.W.

D.M. Fulton, for the respondents Embleton Homes Inc., P.S.C., S.S.K., M.S., Embleton Homes and S.S.

E. Fellman, for the Landlord and Tenant Board

Keywords: Real Property, Landlord and Tenant, Residential Tenancies, Grounds for Termination and Eviction, Sale and Occupation by Purchaser, Bad Faith, Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 49(1), 57(1)(b), TST-94914-18 (Re), 2019 CanLII 134579 (Ont. L.T.B.), Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, 431 D.L.R. (4th), Price v. Turnbull’s Grove Inc., 2007 ONCA 408, CET-67272-17 (Re), 2017 CanLII 70040 (Ont. L.T.B.), Duarte v. 2132338 Ontario Ltd., 2021 CanLII 146522 (Ont. L.T.B.), TST-10645-19 (Re), 2020 CanLII 31285 (Ont. L.T.B.), TST-42753-13-RV (Re), 2014 CanLII 28557 (Ont. L.T.B.), R. v. Sheppard, 2002 SCC 26, Hanna & Hamilton Construction Co. Ltd. v. Robertson, 2021 ONCA 660

facts:

ME and her son JF (the “Tenants”) rented and occupied a single-family residence (the “Residence”). The landlords were GW, JW, and MW (the “Vendor Landlords”). PC and SK (the “Original Purchasers”) signed and dated an Agreement of Purchase and Sale (the “APS”) for the Property. A Form 160, “Registrant’s Disclosure of Interest Acquisition of Property” was also completed. On the Form 160, PC declared he was a registered real estate salesperson representing Homelife/Miracle Realty Ltd. in connection with a proposed offer to purchase the Property. Immediately below that, in preprinted words, the Form 160 provided: “Please be advised that, if the proposed Offer is accepted, I will be either directly or indirectly acquiring an interest in your Property”. Below that statement, a preprinted note called for an explanation if the registrant’s interest was indirect. PC handwrote the following explanation: “Being a partner, we are buying this property as a future development”.

Pursuant to s. 49(1) of the Residential Tenancies Act, (“RTA”), the Vendor Landlords served the Tenants with a Form N12, entitled “Notice to End your Tenancy Because the Landlord, a Purchaser or a Family Member Requires the Rental Unit”. The Tenants vacated. Over the following months, the Residence remained vacant. Toward the end of 2018, the son of one of the Original Purchasers moved into the Residence but stayed for only approximately 25 days. The Residence was subsequently rented out for a higher amount than what the Tenants had been paying. The Tenants later filed three applications with the Board: T1, T2, and T5 applications. The Tenants alleged that the s. 49 Termination Notice was given in bad faith and the Original Purchasers did not want the Residence for their own use.

The Board dismissed the Tenants’ T5 Application. The Tenants appealed the Board decision to the Divisional Court pursuant to s. 210(1) of the RTA. The Divisional Court dismissed their appeal.

issues:

1. Did the Board err in their approach to determining whether, pursuant to s. 57(1)(b) of the RTA, the Vendor Landlords acted in bad faith in giving the s.49 Termination Notice?
2. Did the Divisional Court err by failing to address the potential liability of the Purchasers of the Property?

holding:

Appeal allowed.

reasoning:

1. Yes.

Section 57(1)(b) required the Board to determine whether the Vendor Landlords gave the s. 49 Termination Notice “in bad faith”. The Board decided that matter based on a single consideration: at the time the Vendor Landlords served the s. 49 Termination Notice, the Vendor Landlords said they had “no reason not to believe it was the [Original] Purchasers’ intention for a family member to move into the unit”. The Court held that this was an unduly narrow approach for determining bad faith under s. 57(1)(b) and amounts to an error of law. The Court further held that to ignore events after a landlord gives a tenant a s. 49 termination notice limits the Board from fulfilling its responsibility to determine bad faith under s. 57(1)(b) and undermines the RTA’s stated purpose of providing tenants with protection from unlawful evictions.

When ss. 49(1) and 57(1)(b) are read together, it is clear that the objective of those provisions is to prevent the sale of a property from being used to unlawfully evict a tenant. It is an error of law for the Board to restrict its consideration to the evidence at the point in time when the landlord gives the tenant a s. 49 termination notice.

As a result of artificially narrowing the assessment of bad faith to when the s. 49 Termination Notice was given, the Board failed to consider that, after the notice was given but before the sale of the Property closed, the Vendor Landlords and/or their lawyer knew that title to the Property would be taken in the name of Embleton Homes Inc., a corporation. A corporation cannot personally occupy a residence for residential purposes. This information must be relevant to the Board’s determination of the Vendor Landlords’ bad faith under s. 57(1)(b).

When deciding the Tenants’ T5 Application, the Board did not consider whether the Purchasers “in good faith” required the Residence for residential occupation. According to the Court, that failure constituted an error in law. When deciding applications brought under s. 57(1)(b), it is insufficient for the Board to assess only whether the landlord acted in bad faith in giving a s. 49 termination notice. The Board must also assess the purchaser’s good faith, which s. 49(1) requires. After making both those determinations, the Board must then consider what orders to make in respect of each of the landlord and the purchaser.

The failure of the Board to address the evidence on the central issue of the Vendor Landlords’ bad faith prevented appellate review and constituted an error of law. The Court concluded that because the Board failed to make the factual findings necessary to fairly resolve the Tenants’ T5 Application, the Court was not in a position to decide it.

2. Yes.

The Tenants’ appeal to the Divisional Court required that Court to determine whether the Board committed errors on questions of law. The Divisional Court dismissed the appeal on the basis that the Board made no such errors. However, the Board did err on questions of law by, among other things, failing to address the Purchasers’ potential liability. The Court held that it was therefore an error of law for the Divisional Court to fail to identify and address that Board error of law. On a fair reading of the Tenants’ documents and submissions before the Board, it was apparent that the Purchasers’ potential liability was a live issue which the Board was required to address.

Bank of Nevis International Limited v. Kucher, 2023 ONCA 793

[Trotter J.A. (Motions Judge)]

Counsel:

N. Shaheen and M. Kawatra for the moving parties

J. Hardy and R. O’Hare, for the responding party

Keywords: Civil Procedure, Security for Costs, Jurisdiction, Forum Non Conveniens, Rules of Civil Procedure, rules 56.01, 61.06(1), Thrive Capital Management Ltd. v Noble 1324 Queen Inc., 2021 ONCA 474, NDrive, Navigation Systems S.A. v Zhou, 2022 ONCA 39, Tsai v Dugal, 2021 ONCA 170

facts:

The respondents in this appeal moved for security for costs under rr. 56.01 and 61.06(1) of the Rules of Civil Procedure.

The appellant, a Nevisian bank which has no connections to Canada, commenced an action against the respondents in defamation, breach of a confidentiality agreement, and related causes of action. The respondents brought a motion to dismiss the action on jurisdictional grounds. They also asserted that the Canadian courts should decline jurisdiction under the doctrine of forum non conveniens. The motion judge accepted both submissions, dismissed the action and awarded costs in the amount of $50,000. The bank appealed.

issue:

Should security for costs be granted?

holding:

Motion granted.

reasoning:

Yes.

The test for granting security for costs is set out in rules 61.06 and 56.01 of the Rules of Civil Procedure. Rule 61.06 (1) requires a party to show where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal; (b) an order for security for costs could be made against the appellant under rule 56.01; or (c) for other good reason, security for costs should be ordered, a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just[…].

Rule 61.06(2) provides that if an appellant fails to comply with an order under subrule (1), a judge of the appellate court on motion may dismiss the appeal.

The Court stated that it must first be determined whether the requirements of r. 61.06(1)(a), (b), or (c) are met; if so, the question is whether it is just to order security for costs, considering the circumstances and the interests of justice. The Court found that this was an appropriate case to award security for the costs of the appeal and the underlying motion. The appellant acknowledged that it should be required to post some security based on its complete lack of connection to Ontario.

The Court also found that there was a solid basis to conclude that the appeal was frivolous, and also possibly vexatious.

The motion judge had provided thorough reasons for concluding that Nevis was the only appropriate forum to commence the action. In the Court’s view, the appellant’s controlling and directing mind, Mr. P., had attempted to avoid invoking the jurisdiction of the Nevisian courts for fear of not receiving a fair trial in light of outstanding criminal proceedings against him. The motion judge concluded that this claim was without foundation.

There was “other good reason” to order security for costs. At the heart of the matter was the disappearance of US$2.53 million. The Court noted that this was important context that bears on the risk the respondents face in being unable to recover the considerable costs already expended in responding to what would appear to be a retributive action commenced by the appellant.

The Court directed the appellant to post security for costs for the appeal in the amount of $25,000, and for the underlying motion in the amount of $50,000.

Willick v. Willard, 2023 ONCA 792

[Tulloch C.J.O., Lauwers and Miller JJ.A.]

Counsel:

T. Samson and R. Marinacci, for the appellants

Sarit E. Batner and Erin S. Chesney, for the respondents

Keywords: Torts, Negligence, Medmal, Standard of Care, Causation, Civil Procedure, Appeals, Sufficiency of Reasons, Evidence, Credibility, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, Calin v. Calin, 2021 ONCA 558, Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, R. v. Dinardo, 2008 SCC 24, Sacks v. Ross, 2017 ONCA 773, R. v. Richardson (1992), 9 O.R. (3d) 194 (C.A.), R. v. Sheppard, 2002 SCC 26, R. v. G.F., 2021 SCC 20, Farej v. Fellows, 2022 ONCA 254, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Vokes Estate v. Palmer, 2012 ONCA 510, Iannarella v. Corbett, 2015 ONCA 110

facts:

On March 10, 2014, BW was doing renovation work and fell. MW, his spouse, took him to Welland County Hospital where he was admitted to the emergency room. Dr. PW treated him and eventually discharged him, referring him to his family doctor, Dr. MC, for follow up.

BW suffered from non-alcoholic cirrhosis of the liver such that his blood did not clot as quickly as the average person. He also suffered from splenic hypertension and an enlarged spleen. As a result, compared to the average person, BW had a relatively high risk of splenic rupture and consequent fatal injury.

BW underwent three CT scans. The first CT scan was of BW’s chest and showed that his left ninth rib was fractured and that there was fluid in his chest. The second CT scan showed dense fluid in the peritoneal cavity and heterogeneity in his spleen, which raised the suspicion of a splenic injury. The third CT scan showed BW’s pre-existing conditions: cirrhosis of the liver, splenic hypertension, and an enlarged spleen. BW’s second and third CT scans showed fluid in his peritoneal cavity but, in PW’s clinical judgment, that fluid was not blood. PW based this judgment on the fact that the amount of fluid had not changed between CT scans, which one would expect if an organ were bleeding.

On March 18, 2014, BW saw his family doctor, MC, who reviewed his hospital records, conducted a physical examination, and ordered an ultrasound for April 27, 2014. The physical examination had not revealed any bruising.

On March 24, 2014, BW passed away. He was 51 years old. The cause of death was exsanguination – loss of blood, resulting from the rupture of a subcapsular hematoma in his spleen. The appellants, BW’s spouse and his sons sued the respondents, Dr. PW and Dr. MC for medical negligence in treating BW.

The trial judge dismissed the action. He found that BW had not suffered a detectable injury to his spleen when Dr. PW treated him. The trial judge also found that Dr. MC’s decision to clear BW for a return to work was appropriate. The appellants appealed the trial judge’s decision concerning Dr. PW and Dr. MC.

issues:

1. Did PW and MC, each or both, breach the standard of care that each of them owed to BW?
2. Did the trial judge err in law in his analysis of the respondents’ credibility?
3. Did a breach of the standard of care cause BW’s death?
4. Did the trial judge’s reasons provide an adequate basis for the appeal?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court in addressing the breach of standard of care, noted that “[i]n any case where standard of care is in issue, the court must determine what is reasonably required to be done (or avoided) by the defendant”: Armstrong at para 87.

The Court rejected the argument that the trial judge’s decision contained no analysis as to what the standard of care was for a reasonably prudent doctor. In the view of the Court, the trial judge’s reasons showed that he engaged with the standard of care that was applicable to each respondent.

On the content of the standard of care owed by PW, the trial judge noted that the respondent’s expert general surgeon, Dr. Cobourn, opined that PW had “met the standard of care” because “there was no clinical evidence at the time of [BW’s] admission to hospital that he had suffered either type of splenic injury” and “therefore no reason… to have been concerned about the risk of delayed splenic rupture”: at para. 24. The trial judge had “preferred the evidence” of Dr. Cobourn: at para. 48. The trial judge also stated that “in the absence of a splenic injury… it was appropriate to refer the patient to his family doctor for follow up”: at para. 44. These statements articulated the standard of care applicable to PW. In the absence of evidence of splenic injury, a reasonably prudent surgeon in PW’s circumstances would have discharged the patient without cautions against delayed splenic rupture.

The standard of care for MC was likewise demonstrated in the opinions of the experts. The respondents’ expert family doctor, Dr. Bornstein, opined that “it was appropriate for MC to let [BW] go back to work” because “his spleen had not been injured on March 10”: at para. 31. The trial judge agreed, holding that MC was “entitled to conclude that [BW] had not suffered a splenic injury” on the basis of PW’s conclusions as well as his own physical examination: at para. 45. In light of these considerations, the trial judge found that MC’s advice “was reasonable and met the standard of care”: at para. 45. These statements constituted an articulation of the standard of care applicable to MC. In the absence of evidence of splenic injury, it was noted that a reasonably prudent family doctor in MC’s circumstances would have cleared BW for work without cautions against splenic rupture.

2. No.

The trial judge considered PW’s testimony to be credible despite three challenges advanced by the appellants. Two of the challenges involved two documents indicating that BW might have suffered a peritoneal hemorrhage while he was under PW’s care. The third challenge pertained to a finding of fact that PW discussed the CT scans with Dr. Aggarwal despite the lack of a record of that conversation.

The appellants characterized the trial judge’s credibility findings as amounting to legal error. However, the Court stated that it recognizes the particular advantage of trial judges in assessing the credibility of witnesses and defers to credibility findings in the absence of palpable and overriding error: Calin at para 16; Madmoud at para 66-67. Given the advantages of trial judges in assessing credibility, the Supreme Court has stated: “Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: R. v. Dinardo, para 26.

The appellants also submitted that it was an error to treat MC’s testimony as credible because it was based on knowledge that MC did not have at the time he assessed BW. Specifically, the appellants argued that the imaging available to MC only ruled out a peritoneal hemorrhage, not a splenic injury altogether. The appellants stated that MC was therefore wrong to suggest that PW had ruled out splenic injury and was not concerned about it. However, this was considered by the Court to be too narrow a view of the evidence that was available to MC, which established that PW had ruled out splenic injury, including the fact of BW’s discharge by PW, BW’s hospital admissions records indicating that hospital staff had identified no splenic injury, and MC’s own physical examination of BW.

Given the trial judge’s analysis, there was no basis on which the Court could reject the trial judge’s credibility findings. Each finding of credibility was open to the trial judge on the evidence before him.

3. No.

Firstly, the issue in this case was whether there was a breach of a standard of care, and whether it caused BW’s injury. It was not incumbent on the trial judge to make a definitive ruling on the cause of BW’s death if there was no breach of the standard of care. In other words, having found no breach of the standard of care, he was not required to go on to make a finding on the cause of BW’s death.

Second, the Court rejected the appellant’s argument that the conclusion on an intervening event was an “irrational inference.” The submission on the potential intervening event somewhat overstated the strength of the trial judge.  He was aware that there were two conclusions available on the evidence: that the delayed rupture was caused by the fall on March 10 or that the rupture was caused by another, later injury.

Third, the Court noted that in choosing between the two possible causes of the ruptured subcapsular hematoma available on the evidence, the trial judge’s determination was not “irrational.” Instead, it was a reasonable statement given his finding that there were no visible subcapsular hematomas during BW’s stay at the Welland County Hospital and that BW experienced new pain and bruising well after the initial trauma.

The appellants argued that the trial judge’s reasons had not clearly addressed whether, if the respondents had instructed BW to remain home, the shorter route to the hospital would have had any effect on his care and thus his likelihood of surviving. But, having determined that neither doctor breached the applicable standard of care, this was not an issue the trial judge needed to address. It was not relevant to liability.

4. No.

The Court noted that it is trite law that a meaningful right of appeal “must not be an illusory right,” as it would be if the reasons provided by the judge for their decision were insufficient.

In Sheppard, Binnie J established that: “The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.”: para 55.

The onus was on the appellant to show an actual error or that the reasons frustrated appellate review: R v G.F. at para 79. The Supreme Court in G.F. “recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments”: paras. 74-76. While an appeal court “must be rigorous in its assessment,” merely raising an ambiguity or an uncertainty in the reasons is insufficient to justify appellate intervention; “the appeal court must determine the extent and significance of the ambiguity”: G.F., at para. 79. To generalize this proposition, the flaw in the reasons must render doubtful both the trial judge’s chain of reasoning and the outcome of the case.

Where the reasons are deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment. To order a new trial in a civil matter, the court must be satisfied that “the interests of justice plainly require that to be done”: Brochu at para 68. There must be a real prospect that a substantial wrong or miscarriage of justice has occurred: Courts of Justice Act, s. 134(6); Vokes Estate at para. 7; Iannarella at para. 23.

In the view of the Court, the appellants had not met their onus of showing that the trial judge made an actual error or that his reasons frustrated appellate review, for two reasons. First, the reasons in this case were not perfect, but they were adequate for appellate review, which the Court undertook in the preceding reasons. Second, the focus of the appellants’ complaint was on the trial judge’s speculation about whether an intervening event caused BW’s death. Once the trial judge determined that the doctors had not breached their respective standards of care, there was no act or omission on anyone’s part that could, in legal terms, have caused BW’s tragic death. That aspect of the trial judge’s reasons was not relevant to the outcome of the case. This asserted flaw in the trial judge’s reasons had not rendered doubtful his chain of reasoning or the outcome of the case.

Canadian National Railway Company v. Holmes, 2023 ONCA 800

[Benotto, Roberts and Copeland JJ.A.]

Counsel:

M. Munro, for the appellants

P. Griffin and B. Morrison, for the respondent

Keywords: Torts, Conspiracy, Breach of Fiduciary Duty, Joint and Several Liability, Remedies, Constructive Trust, Disgorgement, Punitive Damages, Civil Procedure, Stay of Proceedings, Rules of Civil Procedure, rule 61.04(1), Cirillo v. Ontario, 2021 ONCA 353, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404

facts:

The appellants sought to appeal the May 7, 2021, dismissal of their motion to stay the action. The appellant, Ms. F, also appealed the March 17, 2022, judgment of conspiracy, joint and several liability, disgorgement of profits and the award of punitive damages made against her.

These appeals represented the culmination of the respondent’s 15-year odyssey to recover several million dollars taken by the appellants as a result of their deceitful scheme. The trial judge found that Mr. H, a former supervisory employee of the respondent, breached his fiduciary duty to the respondent by hiring the corporate appellants, his own companies, and causing the respondent to approve his corporations’ invoices. He also found that Mr. H’s common law wife, Ms. F, was deeply involved in the management of the corporations, knew or ought to have known she was assisting him with this deceitful scheme perpetrated through the corporations and benefitted from the improperly obtained profits.

The trial judge ordered a constructive trust over all their assets, including those in the living trusts, and a tracing order, so that the respondent could enforce its judgment and hold the appellants accountable.

issues:

1. Did the trial judge err in dismissing the motion to stay?
2. Did the trial judge err in the judgment of conspiracy, joint and several liability, disgorgement of profits, and the award of punitive damages?

holding:

Appeal dismissed.

reasoning:

1. No.

First, the appellants’ stay motion was not properly before the Court. The trial judge made a dispositive endorsement, giving “a very high level explanation of the result”, with more detailed reasons to follow. There was no further order taken out for the dismissal of the stay motion. The judgment disposing of the action did not contain any provision dismissing the stay motion or any reference to the May 27, 2021, dismissal of the stay motion. It is well-established that an appeal is from the order rather than the reasons for the order.

Second, Ms. F’s grounds of appeal amounted to an invitation for the Court to redo the trial judge’s findings. That is not the role of an appeal court. The trial judge made findings of fact that were firmly grounded in the evidence. He was the best placed to make these findings, having had the benefit of the entire factual record and the witnesses before him in a lengthy trial.

2. No.

The trial judge made clear and unassailable findings that Ms. F participated in a conspiracy to assist Mr. H to breach his fiduciary duty to the respondent by deceitfully hiring and approving invoices from his own corporations. He also found that these actions resulted in the appellants benefiting from millions of dollars of ill-gotten profits. Absent error, which the Court did not see, the trial judge’s findings were owed considerable deference on appeal. There was no basis for appellate intervention.

The respondent was entitled to its costs from the appellants, on a joint and several basis, in the all-inclusive agreed upon amount of $40,000.

SHORT CIVIL DECISIONS

Fehr v. Gribilas, 2023 ONCA 791

[van Rensburg, Paciocco, and Thorburn JJ.A.]

Counsel:

C.G. Carter, for the appellants/respondents by way of cross appeal

E.A. Cherniak and S. Jones, for the respondent/appellant by way of cross appeal Burns Hubley LLP

M.R. Kestenberg and A. Hershtal, for the respondent/appellant by way of cross-appeal P.G.

J. Rosenstein, for the respondent J+W Foods Inc.

Keywords: Costs

Heliotrope Investment Corporation v. Beach, 2023 ONCA 794

[Doherty, Pepall and Zarnett JJ.A.]

Counsel:

J.G. B. and M. L. B., acting in person

P. Ostroff, D. Sayer and A. Stikuts, for the applicant (respondent)

Keywords: Costs

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.