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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of February 5, 2024.

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In Westover Estate v Jolicouer, the Court dismissed the appeal in an estate dispute over an inter vivos transfer by the deceased made decades earlier. The Court found no errors in the trial judge’s reasoning in dismissing the action. The Court also agreed with the order for costs made against the estate trustee/litigation administrator personally, and not out of the estate. The litigation administrator had been found to have improperly instigated and continued the litigation in which she had made unfounded allegations of fraud and conspiracy against her siblings. As the litigation was mainly for her benefit rather than for the estate, it was appropriate to order her to pay the costs personally.

In Bennington Financial Corp v Medcap Real Estate Holdings Inc, the Court dismissed an appeal from an order that refused to strike or dismiss a case for failure to immediately disclose a settlement between some of the parties to the litigation. In this case, the settlement in question did not significantly shift the litigation landscape by transforming an adversarial position of the parties into a cooperative one.

In Robertson v. Ontario, the Court upheld the certification judge’s decision to only certify this class action arising out of the spread of COVID-19 in long-term care homes in Ontario against the Minister of Long-Term Care. The certification judge had dismissed the claims against the other Ministries named as disclosing no reasonable cause of action, and the Court upheld that decision.

In Sanei v. Debarros, the Court upheld the dismissal of the appellant’s MVA action on the basis that it was statute-barred.

In Student A v Toronto French School, the Court quashed an appeal from an order refusing to stay an order pending an appeal in an education law case.

Children’s Aid Society of Toronto v R.I. regarding the enforcement of a child protection order where the issues on appeal were jurisdictional in nature.

B.F. v. A.N. is a very sad and extraordinary family law matter involving grandparental contact rights.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Bennington Financial Corp v Medcap Real Estate Holdings Inc, 2024 ONCA 90

Keywords: Civil Procedure, Partial Settlements, Immediate Disclosure Rule, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Moore v. Bertuzzi, 2012 ONSC 3248, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

B.F. v. A.N., 2024 ONCA 94

Keywords:  Family Law, Parenting, Decision-Making, Grandparental Contact, Civil Procedure, Procedural and Natural Justice, Divorce Act, R.S.C. 1985, c. 3, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, Child Youth and Family Services Act, 2017, S.O. 2017, c 14, Sched. 1, Giansante v. DiChiara, 2005 CanLII 26446, Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518

Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93

Keywords: Family Law, Child Protection, Civil Procedure, Jurisdiction, Procedural and Natural Justice, Reasonable Apprehension of Bias, Orders, Enforcement, functus officio, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 11(2), 38(2), 96, Family Law Rules, O Reg 114/99, s 1(2)(a)(ii)(8), 2(1)(5)(c), 26, 31(1), Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369

Robertson v. Ontario , 2024 ONCA 86

Keywords:  Torts, Negligence, Breach of Fiduciary Duty, Charter Claims, Crown Liability, COVID-19, Health Law, Statutory Interpretation, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Legislation Act, 2006, S. O. 2006, c. 21, Sched. F., s 69, Class Proceedings Act, 1992, S. O. 1992, c. 6, s 5(1)(a), Long-Term Care Homes Act, 2007, S. O. 2007, c. 8, s 174, 181, Health Protection and Promotion Act, R.S.O. 1990, c. H. 7, Supporting Ontario’s Recovery Act, 2020, S. O. 2020, c. 26, Sched. 1, s 2(1),  Taylor v. Canada (Attorney General), 2012 ONCA 479, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Leroux v. Ontario, 2021 ONSC 2269, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Leroux v. Ontario, 2023 ONCA 314, Odhavji Estate v. Woodhouse, 2003 SCC 69, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, Eliopoulos (Litigation Trustees of) v. Ontario (Minister of Health and Long-term Care) (2006), 82 O. R. (3d) 321, Williams v. Ontario, 2009 ONCA 378, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, Rizzo & Rizzo Shoes Ltd., (Re), [1998] 1 S.C.R. 27, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly, [1993] 1 S.C.R. 319, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, Hinse v. Canada (Attorney General), 2015 SCC 35, Barker v. Barker, 2022 ONCA 567, Gosselin v. Québec, 2002 SCC 84, Abarquez v. Ontario, 2009 ONCA 374]

Sanei v. Debarros , 2024 ONCA 104

Keywords:  Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Reasonable Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., ss. 4, 5, Insurance Act, R.S.O. 1990, c. I.8., s. 267.5, Ontario Regulation 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, s. 4.3, Everding v. Skrijel, 2010 ONCA 437, Fennell v. Deol, 2016 ONCA 249, Morrison v. Barzo, 2018 ONCA 979, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Dubreuil v. Lalande, 2014 ONSC 7433, Rockford v. Haque, 2019 ONSC 474, Yasmin v. Alexander, 2016 ONCA 165, Gyorffy v. Drury, 2015 ONCA 31, Halley v. TTC, 2018 ONSC 6093, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, K.L.B. v. British Columbia, 2003 SCC 51

Student A v. Toronto French School , 2024 ONCA 83

Keywords:  Education Law, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Vexatious Litigation, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(3), 7(5), 19(1), 134(3), Criminal Code, R.S.C. 1985, c. C-46, Rules of Civil Procedure, r. 2.1.02, Weidenfeld v. Weidenfeld, 2022 ONCA 860, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ncube v. Hassen, 2022 ONCA 840, Bunker v. Veall, 2023 ONCA 501, London Health Science Centre v. R.K. (1997), 152 D.L.R. (4th) 724 (Ont. S.C.), Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

Westover Estate v. Jolicouer , 2024 ONCA 81

Keywords:  Wills and Estates, Inter Vivos Transfers, Civil Procedure, Limitation Periods, Ultimate Limitation Period, Procedural and Natural Justice, Reasonable Apprehension of Bias, Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 15, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Sawdon Estate v. Sawdon, 2014 ONCA 101, Salter v. Salter Estate (2009), 50 E.T.R. (3d) 227 (Ont. S.C.), Johnson v. Johnson Estate, 2022 ONCA 682, McDougald Estate v. Gooderham (2005), 255 D.L.R. (4th) 435 (Ont. C.A.), Neuberger Estate v. York, 2016 ONCA 303, White v. Gicas, 2014 ONCA 490, Brown v. Rigsby, 2016 ONCA 521, Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, Unisys Canada Inc. v. York Three Associates Inc. (2001), 44 R.P.R. (3d) 138 (Ont. C.A.), Avdeeva v. Khousehabeh, 2023 ONSC 6402

Short Civil Decisions

Margel v. Dawson , 2024 ONCA 97

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Possession, Civil Procedure, Writs of Possession, Stay Pending Appeal

OZ Optics Ltd. v. XL Insurance Company PLC , 2024 ONCA 95

Keywords:  Contracts, Insurance, Lawyer and Client, Conflicts of Interest, Costs

Phong v. Nguyen , 2024 ONCA 91

Keywords:  Civil Procedure, Orders, Enforcement, Contempt, Costs

Sanei v. Debarros , 2024 ONCA 104

Keywords:  Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Reasonable Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., ss. 4, 5, Insurance Act, R.S.O. 1990, c. I.8., s. 267.5, Ontario Regulation 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, s. 4.3, Everding v. Skrijel, 2010 ONCA 437, Fennell v. Deol, 2016 ONCA 249, Morrison v. Barzo, 2018 ONCA 979, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Dubreuil v. Lalande, 2014 ONSC 7433, Rockford v. Haque, 2019 ONSC 474, Yasmin v. Alexander, 2016 ONCA 165, Gyorffy v. Drury, 2015 ONCA 31, Halley v. TTC, 2018 ONSC 6093, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, K.L.B. v. British Columbia, 2003 SCC 51

Yurkovich v. Citibank Canada , 2024 ONCA 98

Keywords:  Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24,  Courts of Justice Act, R.S.O. 1990, c. C.4, s.19(1)(b), Natario v. Rodriguez, 2015 ONCA 227, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404, Boyer v. Callidus Capital Corporation, 2023 ONCA 233


CIVIL DECISIONS

Bennington Financial Corp v Medcap Real Estate Holdings Inc,, 2024 ONCA 90

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

F. S. Turton, for the appellant Medcap Real Estate Holdings Inc.

I. Lavrence, for the respondent Bennington Financial Corp. (Formerly Equirex Leasing Corp.)

D. N. Hawreliak, for the respondent Heffner Investments Limited

Keywords:  Civil Procedure, Partial Settlements, Immediate Disclosure Rule, Pettey v. Avis Car Inc. (1993), 13 O.R. (3d) 725 (Gen. Div.), Handley Estate v. DTE Industries Limited, 2018 ONCA 324, Moore v. Bertuzzi, 2012 ONSC 3248, CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, Skymark Finance Corporation v. Ontario, 2023 ONCA 234, Crestwood Preparatory College Inc. v. Smith, 2022 ONCA 743

facts:

The appellant, Medcap Real Estate Holdings Inc. (“Medcap”) brought motions to stay or dismiss the actions against it by the respondents, Heffner Investments Limited (“Heffner”) and Bennington Financial Corp. (“Bennington”), for breach of the immediate disclosure rule, which were dismissed in May 2023. Bennington commenced a number of lawsuits against Medcap, Premier, and other related entities in 2017 after alleging defaults under leases and collateral mortgages. Heffner commenced its action against Medcap in 2019 following alleged defaults. In March 2020, to avoid a tax sale of the Wentworth property, Heffner, Bennington, and the third-party creditor jointly paid the accumulated tax arrears. After learning of a settlement arrangement, Medcap brought motions to stay or dismiss the actions against it by Heffner and Bennington for breach of the immediate disclosure rule. The motion judge found that the agreement between Heffner, Bennington, and a third-party creditor did not need to be immediately disclosed and did not significantly alter the adversarial relationship among the parties or the dynamics of the litigation.

issues: 

Did the motion judge err in finding that the agreement between the respondents did not need to be disclosed under the immediate disclosure rule?

holding: 

Appeal Dismissed

reasoning: 

No.

The immediate disclosure rule, established in Pettey v Avis Car Inc, mandates that agreements which significantly shift the litigation landscape must be disclosed. Disclosure is necessitated when an agreement transforms the adversarial position of the parties into a cooperative one, to maintain the fairness of the litigation process. The appellant argued for the disclosure of agreements that hindered settlement, but the motion judge found this would unjustly broaden the narrowly defined rule. The motion judge determined that the agreement in question did not entirely change the litigation landscape in a way that significantly altered the dynamics of the litigation. The shared strategy by the respondents was deemed an oral agreement that did not necessitate mutual support in proceedings, nor did it make the respondents adverse to one another or change the litigation’s dynamics between them and the appellant. The Court found no error in the motion judge’s application of the immediate disclosure rule based on these findings.


B.F. v. A.N., 2024 ONCA 94

[Simmons, Paciocco and Thorburn JJ.A.]

Counsel:

I.F., acting in person

A.N., acting in person, via video conference

J.L. Long, for the respondent Office of the Children’s Lawyer

No one appearing for the respondent B.F.

Keywords: Family Law, Parenting, Decision-Making, Grandparental Contact, Civil Procedure, Procedural and Natural Justice, Divorce Act, R.S.C. 1985, c. 3, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, Child Youth and Family Services Act, 2017, S.O. 2017, c 14, Sched. 1, Giansante v. DiChiara, 2005 CanLII 26446, Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518

facts:

The trial judge made orders under s.16.1 of the Divorce Act, that a five-year-old child reside with her father at all times, and that the father have sole decision-making responsibility over all decisions relating to the child. The child’s mother initiated the divorce proceeding but did not participate in the trial because, prior to the trial, she was convicted of attempting to murder the child and her own mother, and was sentenced to life imprisonment. As part of the criminal proceeding, the child’s mother was also prohibited from having contact with the child, the child’s father, or any member of the family of the child’s father.

The live issues at trial related to contact between the maternal grandparents and the child. Both maternal grandparents brought applications under the Children’s Law Reform Act (the “CLRA”) in which they sought decision-making responsibility for, and primary residence of, the child. However, both abandoned those claims prior to trial. Accordingly, the only issues at trial were whether the maternal grandparents should have contact with the child and access to her medical records and whether any orders restraining their contact with the child should be made.

The trial judge ordered that the maternal grandfather, B.O.F., be permitted to have some supervised contact with the child. However, under s. 16.5 of the Divorce Act, and in keeping with the order made in the context of the criminal matter, the trial judge ordered that the maternal grandmother, I.F., have no direct or indirect contact with the child, with her father, or with any member of the father’s family. In addition, the trial judge ordered that neither maternal grandparent have access to any medical reports, information, or records in relation to the child and that neither maternal grandparent contact any of the medical or health professionals working with the child. Further, under s. 35 of the CLRA, the trial judge made an order permanently restraining the maternal grandmother from any direct or indirect contact or communication with the child’s father, the child, or any centres where the child receives treatment.

issues: 
  1. Did the trial judge err in applying the best interest of the child test as set out in s.16 of the Divorce Act?
  2. Were the appellant’s rights to a fair trial infringed?
holding: 

Appeal dismissed.

reasoning: 
  1. No.

The trial judge concluded that it was not in the child’s best interests that she have any contact with her maternal grandmother or that the maternal grandmother have access to the child’s medical records.

The trial judge conducted a full best interest analysis, taking account of many factors, including the following: the nature and strength of the child’s relationship with the appellant and the history of the child’s care; the child’s needs and, particularly in this case, her special needs; the appellant’s willingness and ability to meet the child’s needs; the appellant’s willingness and ability to cooperate with the child’s father and other caregivers; the child’s cultural, linguistic, and religious upbringing; and any criminal proceeding, order, condition or measure relevant to the safety of the child. Despite the appellant’s love for and early bond with the child and other good qualities the trial judge recognized, the trial judge concluded that many negative factors outweighed those positive factors and militated against the appellant having contact with the child or access to her medical records.

The trial judge concluded that the maternal grandmother did not understand the child’s medical needs and had no willingness or ability to meet the child’s needs and no willingness or ability to communicate or co-operate with the child’s father or her other caregivers. On the other hand, the trial judge was satisfied that the child’s father had demonstrated that he was committed to caring for the child “with as much care and thought as possible” and with the guidance and advice of the medical team looking after her.

The Court held that the trial judge correctly set out the law concerning grandparent contact with a child in divorced proceedings and conducted a thorough analysis of the relevant factors, including factors set out in s.16 of the Divorce Act. Contrary to the appellant’s submissions, the trial judge’s analysis was focused on the best interests of the child, not the best interests of the child’s father or mother. The trial judge provided compelling reasons, rooted in the appellant’s conduct, concerning why contact between the appellant and the child was not in the best interests of the child and why the appellant should not have access to the child’s medical records.

Given that the maternal grandparents had withdrawn their claims under the CLRA, it was not necessary that the trial judge assess whether the child’s father should have sole parenting time and decision-making responsibility for her. Nonetheless, as part of her grandparent-contact analysis the trial judge gave reasons that amply supported the child’s father having sole parenting time and decision-making responsibility for the child. The trial judge’s reasons made clear that she was aware of the history of family violence and criminal record of the child’s father, but was satisfied that he had taken responsibility for his past and was now acting in the child’s best interests. The Court held that these findings were open to the trial judge on the record.

While the trial judge agreed that it was important that the child continue to be exposed to her Serbian and Christian heritage, she concluded that contact with the appellant to try and meet that goal would jeopardize the child’s emotional and medical stability. Again, this was a finding that was open to the trial judge on the record.

The Court was satisfied that it was open to the trial judge on the evidence to prefer the evidence of the medical experts concerning the child’s condition and treatment needs over the evidence of the appellant. The Court saw no error in her findings or her conclusion that the appellant’s beliefs and conduct justified denying the appellant’s requests for contact with the child and access to her medical records.

  1. No.

The appellant submitted that her fair trial rights were infringed in two ways. First, because her exhibits on the Caselines court document filing system were tampered with and ultimately destroyed, such that she was prevented from properly presenting her case. Second, because she was barred by an order made in the criminal proceedings from speaking to the child’s mother or calling the child’s mother as a witness. The Court rejected the appellant’s arguments because there was no evidence to support her allegations.

The issue of the sentencing conditions imposed on the child’s mother was not raised by the maternal grandmother until her oral submissions on appeal. Such conditions were not properly the subject of this proceeding, as they were imposed by the sentencing judge as part of the criminal proceeding. The Court ultimately held that it had no basis for concluding that the appellant’s fair trial rights were infringed.


Children’s Aid Society of Toronto v. R.I., 2024 ONCA 93

[Nordheimer, Copeland and Dawe JJ.A.]

Counsel:

Withanage and D. Castillo, for the appellant

Senson, S. Wisnicki and S. MacKinnon, for J.R.

Tempesta and J. Hyndman, for N.M.

No one appearing for the respondents

Keywords: Family Law, Child Protection, Civil Procedure, Jurisdiction, Procedural and Natural Justice, Reasonable Apprehension of Bias, Orders, Enforcement, functus officio, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched 1, Courts of Justice Act, RSO 1990, c C 43, ss 6(1)(b), 11(2), 38(2), 96, Family Law Rules, O Reg 114/99, s 1(2)(a)(ii)(8), 2(1)(5)(c), 26, 31(1), Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369

facts:

There were three children involved in this proceeding, removed from their home by the Children’s Aid Society of Toronto (the “Society”) pursuant to the Child, Youth and Family Services Act. A four-day trial was held before the Ontario Court of Justice in November 2022. On December 22, 2022, the OCJ judge determined that two of the children (N.M. and A.I.) should live with their parents and the third child (J.R.) should live with the maternal grandparents. Both placements were for a period of 12 months and were subject to supervision by the Society.

The OCJ judge also ordered specific terms of access. It was alleged that the terms of the order regarding access were breached in January 2023. This led to the Office of the Children’s Lawyer (the “OCL”) bringing a motion, on behalf of J.R., before the OCJ judge, for enforcement of the access provisions. On February 14, 2023, the OCJ judge adjourned the motion to permit the parents to remedy the breach. The matter came back before the OCJ judge on April 3, 2023. The breach had not been satisfactorily remedied. The OCJ judge chose to give the parents a further opportunity to remedy the breach by ordering access for the next three months on specific dates in April, May, and June.

The Society appealed the April order to the Superior Court of Justice. The appeal came on before the SCJ judge on June 12, 2023. Pending a decision on the appeal, the SCJ judge ordered that the April order would continue in force. The SCJ judge also ordered that access would take place on four dates in July, August, September, and October.

By order dated August 21, 2023, the SCJ judge dismissed the appeal. The Society appealed to the Court from the dismissal of its appeal by the SCJ judge.

The Society’s position throughout these proceedings had been that the OCJ judge did not have the jurisdiction to entertain the enforcement motion brought by the OCL on behalf of J.R. The Society contended that the OCJ judge misinterpreted her jurisdiction under ss. 11(2), 38(2), and 96 of the Courts of Justice Act (“CJA”), by hearing a motion pursuant to s. 1(8) of the Family Law Rules, absent a live application before the court.

The Society also asserted that it did not receive procedural fairness in both the February and April hearings before the OCJ judge because the OCJ judge did not permit it to make submissions regarding the court’s jurisdiction. Lastly, the Society contended that there was a reasonable apprehension of bias on behalf of the SCJ judge because of the manner in which he conducted the appeal hearing and because of certain laudatory comments he made about the judges of the OCJ who preside at the relevant court location.

issues: 
  1. Does this Court have jurisdiction under the CJA to hear the appeal?
  2. Did the SCJ judge demonstrate any bias in his conduct of the appeal hearing?
  3. Did the OCJ judge have jurisdiction to entertain an enforcement motion under rule 1(8)?
  4. Was the OCJ judge inconsistent in saying during the hearing that she would not find a breach of the order, and then in her endorsement finding a breach?
  5. Was the fact that the OCJ judge did not permit the Society to make its jurisdiction argument change the correctness of her conclusion that she was entitled to rely on 1(8)?
holding: 

Appeal dismissed.

reasoning: 
  1. Yes.

Counsel for N.M. submitted that the orders below were both interlocutory and, therefore, the Court did not have jurisdiction under s. 6(1)(b) of CJA to hear the appeal. Section 6(1)(b) provides that an appeal lies to the Court of Appeal from a final order of the Superior Court of Justice.

The Court did not agree. The only question on this appeal was whether the order of the SCJ judge that dismissed the appeal was a final order. That order finally disposed of the issue of the OCJ’s jurisdiction to make the order that it did. Therefore, the Court had jurisdiction to hear the appeal.

  1. No.

The Court did not see any basis for the Society’s submission that the SCJ judge demonstrated any bias in his conduct of the appeal hearing. The SCJ judge attempted to get the parties to resolve the issue, which was entirely reasonable given the nature of the proceedings. Subrule 2(5)(c) of the Family Law Rules requires the court to promote its primary objective of enabling it to deal with cases justly by “helping the parties to settle all or part of the case”.

The Society also contended that references by the SCJ judge to his “respect for” his “wonderful” colleagues at the OCJ were “over familiar” and therefore gave rise to a reasonable apprehension of bias. The Court did not see a basis for this submission either. The SCJ judge specifically says that “I don’t know all of them [the judges at this particular courthouse] and I don’t know the judge who, by the way, this judge”.

The Court did accept that it would have been preferable if the SCJ judge had not offered his views on the quality of the judges of the OCJ in this fashion. However, that did not warrant the suggestion that there was an appearance of bias on behalf of the SCJ judge. The conduct of the SCJ judge did not approach that level.

  1. Yes.

The Society contended that there must be an existing proceeding, or ongoing case, for a judge to be able to resort to r. 1(8). It said that since the OCJ judge made a final order in December 2022, after the completion of the trial, there was no ongoing case. The OCJ judge was, the Society contended, in effect, functus officio after that point.

The Court did not accept the Society’s submission. First, the case was not over or spent as the Society contended. The December order was final. But the disputed motion was not about changing a final order, but rather about enforcing it. There was an obligation under the order for various parties to do particular things. The OCJ judge, in her role as the trial judge, was not functus, as that term was properly understood. The OCJ judge, like any trial judge, retained jurisdiction to ensure that the order made was followed.

Further, the Society’s position did not accord with the wording of the Family Law Rules themselves. The Society submitted that there was no longer a case when the OCJ judge made the order in December 2022 after trial. Yet the Family Law Rules define what is meant when the word “case” is used in those Rules. Rule 2(1) defines “case”. It reads:

“[C]ase” means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals; [Emphasis added.]

The Family Law Rules therefore expressly contemplate that enforcement is part of the case. There was no basis for drawing a distinction between orders, whether made during a proceeding or at the end of the proceeding, in terms of the enforcement process.

  1. No.

The Society unfairly characterized the OCJ judge’s language during the hearing. What the OCJ judge said was that she was not prepared, at that very moment, to find a breach of the order. That provisional position did not preclude the OCJ judge from ultimately concluding that there had been a breach.

  1. No.

At the outset of the Society’s oral submissions, the OCJ judge advised counsel that she had read the Society’s written materials and considered the jurisdiction issue. She directed that if the Society’s counsel wished to address the jurisdiction issue, she should address a particular authority which, in the OCJ judge’s view, gave the court jurisdiction to make enforcement orders under r. 1(8). Rather than address the jurisdiction issue at the outset of her submissions, the Society’s counsel addressed the merits of the access issue before the court. After all parties had made submissions on the merits, counsel for the Society sought to make oral submissions on the jurisdictional issue. As time was running short, the OCJ judge, at that point, did not permit the Society’s counsel to make oral submissions on the jurisdictional issue.

It would have been preferable for the OCJ judge to hear the Society’s oral submissions on the jurisdiction issue before deciding it. That said, the fact that the OCJ judge did not do so did not change the correctness of her conclusion that she was entitled to rely on r. 1(8) to make the order that she did.


Robertson v. Ontario, 2024 ONCA 86

[Brown, George and Monahan JJ.A.]

Counsel:

P. Rochon, G. Nayerahmadi, A. K. Thorsen and J. Xhaferraj, for the appellants/respondents by way of cross-appeal

Wayland, J. Boyczuk and K. Leung, for the respondent/appellant by way of cross-appeal

Keywords: Torts, Negligence, Breach of Fiduciary Duty, Charter Claims, Crown Liability, COVID-19, Health Law, Statutory Interpretation, Civil Procedure, Class Proceedings, Certification, Reasonable Cause of Action, Legislation Act, 2006, S. O. 2006, c. 21, Sched. F., s 69, Class Proceedings Act, 1992, S. O. 1992, c. 6, s 5(1)(a), Long-Term Care Homes Act, 2007, S. O. 2007, c. 8, s 174, 181, Health Protection and Promotion Act, R.S.O. 1990, c. H. 7, Supporting Ontario’s Recovery Act, 2020, S. O. 2020, c. 26, Sched. 1, s 2(1),  Taylor v. Canada (Attorney General), 2012 ONCA 479, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Leroux v. Ontario, 2021 ONSC 2269, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, Leroux v. Ontario, 2023 ONCA 314, Odhavji Estate v. Woodhouse, 2003 SCC 69, Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, Eliopoulos (Litigation Trustees of) v. Ontario (Minister of Health and Long-term Care) (2006), 82 O. R. (3d) 321, Williams v. Ontario, 2009 ONCA 378, Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, Rizzo & Rizzo Shoes Ltd., (Re), [1998] 1 S.C.R. 27, New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly, [1993] 1 S.C.R. 319, Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, Hinse v. Canada (Attorney General), 2015 SCC 35, Barker v. Barker, 2022 ONCA 567, Gosselin v. Québec, 2002 SCC 84, Abarquez v. Ontario, 2009 ONCA 374

facts:

The appellants sought to certify a class proceeding against the provincial government arising from its response to the risks posed by COVID-19 to long-term care (“LTC”) home residents in Ontario. The proposed proceeding asserted three separate causes of action against the respondent (collectively, the “Claims”):

  • a claim in negligence arising from the acts or omissions of the Minister of Long-Term Care (the “MLTC”), the Minister of Health (the “MOH”), and the Chief Medical Officer of Health (the “CMOH”) (collectively, the “Crown Officers”);
  • a claim for breach of fiduciary duty arising from the acts or omissions of the Crown Officers; and
  • a claim for breach of the appellants’ rights under s. 7 of the Charter, arising from the acts or omissions of the Crown Officers.

On December 20, 2022, the motion judge certified the appellants’ class action against Ontario arising from the alleged negligence of the MLTC in responding to the risk posed by COVID-19 to residents of Ontario’s LTC homes. The motion judge struck all the appellants’ other proposed claims (the “Struck Claims”) on the basis that they were certain to fail. The appellants appealed the motion judge’s decision not to certify the Struck Claims, while the respondent cross-appealed the certification of the claim arising from the alleged negligence of the MLTC.

issues: 
  1. Did the motion judge err in striking the negligence claim against the MOH and the CMOH?
  2. Did the motion judge err in finding that the negligence claim against the MLTC was not certain to fail, and therefore satisfied the “cause of action” requirement in s. 5(1)(a) of the Class Proceedings Act, 1992?
  3. Did the motion judge err in striking the breach of fiduciary duty claim?
  4. Did the motion judge err in striking the Charter 7 claim?
holding: 

Appeal and cross-appeal dismissed.

reasoning: 

Reasoning:

  1. No

Governing Principles

The focus of the motion judge’s analysis was on whether the Claims satisfied the “cause of action” requirement in s. 5(1)(a) of the Class Proceedings Act, 1992 (the “CPA”).

A public authority is liable in negligence only where the authority owes a “duty of care” to the person harmed: Odhavji at paras 22-23. If the negligence claim against the public authority does not fall within a pre-existing category of cases in which a duty of care has previously been recognized, the plaintiff must satisfy the following three requirements: (i) the harm suffered by the plaintiff must have been reasonably foreseeable; (ii) there must have been sufficient “proximity” between the plaintiff and the public authority such that it would be “fair and just” to impose a duty of care on the public authority ; and (iii) there must be no residual policy reasons for declining to impose such a duty: Aylmer Meat Packers Inc. at para 22.

A relationship of “proximity” can be established either through “specific interactions” between the government and the claimant, or where the relevant legislation gives rise to a duty of care expressly or by necessary implication: Imperial Tobacco Ltd. at paras. 43-46. However, where the statutory scheme grants discretionary power to a public authority to act in the “public interest”, this will generally preclude the existence of a private law duty of care in relation to a particular group of affected individuals. This is because such powers are to be exercised in the general public interest and are not aimed at the protection of the private interests of specific individuals: Eliopoulos (Litigation Trustees of) at para 17 (discretionary powers conferred on the MOH under the Health Protection and Promotion Act (“HPPA”) are not capable of creating a private law duty of care.); Williams at para 25 (directives issued by the CMOH to combat SARS were aimed at the interests of the public at large and therefore could not give rise to a private law duty of care).

No Duty of Care Arising from “Specific Interactions”

The appellants argued that the motion judge erred in finding that the Claim failed to adequately plead any “specific interactions” between the Crown Officers and the residents of the LTC homes that could give rise to a duty of care. The appellants relied, in particular, on Directive #3 for Long-Term Care Homes under the Long-Term Care Homes Act, 2007, first issued on March 22, 2020 by the CMOH pursuant to s. 77.7 of the HPPA (“Directive #3”). This Directive set out a number of precautions and procedures that LTC homes were required to implement immediately to limit the spread of COVID-19, including tightened procedures to be followed in the admission of new residents to LTC homes.

The difficulty with the appellants’ negligence claim was not that it failed to identify specific government officers and employees whose acts or omissions might have engaged the vicarious liability of Ontario. Rather, as the motion judge pointed out, the shortcoming in the appellants’ pleading was that it failed to identify any “specific interactions” between the Crown Officers (or, indeed, any other Crown employees), which could have given rise to a duty of care in favour of the residents of the LTC homes.

For example, Directive #3, upon which the appellants particularly relied on, was directed to the independent operators of the LTC homes, rather than the LTC residents themselves. Moreover, Directive #3 was one of dozens of directives issued by the CMOH during the course of the COVID-19 pandemic, pursuant to the CMOH’s general authority under the HPPA, to take action in the public interest where there was “an immediate risk to the health of persons anywhere in Ontario”. Those directives mandated necessary precautions and procedures to limit the spread of COVD-19 amongst the entire Ontario population.

Far from representing a “radical and improper departure from appellate jurisprudence”, the motion judge correctly applied the governing jurisprudence, particularly Eliopoulos and Williams. As noted above, these cases clearly established that directives issued by the CMOH to combat a threat to public health in Ontario are issued pursuant to the CMOH’s duty to act in the general public interest and for that reason cannot give rise to a private law duty of care. In fact, the circumstances in the present case were directly analogous to those in Eliopoulos, where a government plan to respond to West Nile Virus was directed to local boards of health and therefore could not give rise to a duty of care in favour of persons infected with the virus: Eliopoulos, at para. 17. Likewise, in this case, Directive #3 was directed to the operators of LTC homes and therefore could not amount to a “specific interaction” with the residents of the homes.

Neither the CMOH Nor the MOH Owe a Duty of Care to LTC Residents Arising from Statute

Binding authority from the Court clearly establishes that the exercise of statutory powers by the MOH and the CMOH under the HPPA cannot give rise to a private law duty of care because these powers are to be exercised in the general public interest. The motion judge relied upon this binding authority and found that there was no statutory basis to have found a negligence claim against the CMOH and the MOH.

The Court noted that while it was true that the preamble to the Long-Term Care Homes Act, 2007 (“LTCHA”) provided that the “government” recognized the responsibility to take action on behalf of the residents of LTC homes, the LTCHA itself had made no mention whatsoever of either the CMOH or the MOH.

The Court ultimately found that the motion judge did not err in finding that there can be no private law duty of care claim against either the CMOH or the MOH on the basis of the statutory language of the LTCHA. Because he had already found that no such private law duty of care could arise on the basis of “specific interactions” between these officers and the residents of the LTC homes, the motion judge correctly struck the negligence claim against the CMOH and the MOH.

  1. No.

The preamble to the LTCHA can be used to interpret the MLTC’s powers under the Act

The motion judge did not err by using the LTCHA’s preamble to interpret the MLTC’s powers. While it is true that the Supreme Court in the Patriation Reference stated that a preamble has “no enacting force”, the Court went on (in the same sentence) to add that “[a preamble] can be called in aid to illuminate provisions of the statute in which it appears.” Courts have on more than one occasion utilized a preamble in this manner. Moreover, s. 69 of the Legislation Act, provides that a preamble may be used to determine an Act’s purpose.

In the view of the Court, the motion judge correctly recited and applied the appropriate statutory interpretation principles regarding the MLTC’s powers pursuant to the LTCHA.

It was not plain and obvious that the “public interest” wording in s. 174.1 of the LTCHA precluded a finding of a duty of care on the part of the MLTC

At this stage, the relevant question was whether the appellants were “certain to fail” in making an argument that the MLTC’s power to issue directives under s. 174.1 must be in “the public interest”.

As the motion judge observed, s. 174.1(2)(c) defined “public interest” as including “the quality of care and treatment of residents within long-term care homes generally”. This was reinforced by the “fundamental principle” set out in s. 1 of the LTCHA, which stated that anything required or permitted to be done under the Act should be interpreted so that residents of long-term care homes may live with “dignity and in security, safety and comfort and have their physical, psychological, social, spiritual and cultural needs adequately met.”

Moreover, it was at least arguable that the statutory mandate of the MLTC was distinguishable from that of the MOH and the CMOH. In Eliopoulos and Williams, the Court had emphasized that the statutory mandate of the MOH and the CMOH was to act in the general public interest and was not aimed at or geared to the protection of the interests of specific individuals: Eliopoulos at para. 17; Williams at para. 25. In contrast, the preamble to the LTCHA and the entire statute was arguably aimed at the protection of an identifiable class of persons, namely, the residents of LTC homes.

The Court noted that it would have been inappropriate at this stage to definitively conclude that the appellants’ argument was certain to fail. This was particularly the case given that the government only recently created the office of MLTC through certain 2019 Orders in Council. Accordingly, there was yet to be any authoritative judicial pronouncement on whether this recent bifurcation of ministerial responsibilities, and the appointment of a minister whose exclusive focus was LTC homes and their residents, altered in any way the duty of care analysis applicable to the MOH and the CMOH.

The motion judge correctly found that the appellants’ claim that the MLTC owed a duty of care to LTC home residents when exercising statutory powers was not certain to fail, notwithstanding the MLTC’s responsibility to act in the general public interest when issuing directives under s. 174.1 of the LTCHA.

The negligence claim against the MLTC was not barred by Crown immunity for policy decisions, nor by the statutory immunity in s. 181 of the LTCHA for decisions taken in good faith

While reckless conduct, in itself, fell short of “bad faith”, reckless conduct can provide circumstantial evidence from which the absence of good faith can be deduced and bad faith inferred: Hinse at para. 53.

The Court agreed with the motion judge’s finding that the appellants had sufficiently pleaded the absence of good faith, such that the claim should not be struck at the pleading stage on account of the Crown’s immunity for policy decisions or on the basis of the statutory immunity in s. 181 of the LTCHA.

In conclusion on this issue, the motion judge correctly applied the relevant legal principles in his analysis of this cause of action. Specifically, the Court saw no reversible error in the motion judge’s finding that the negligence claim against the MLTC was at least arguable, and therefore should not have been struck on the basis of the “cause of action” requirement in s. 5(1)(a) of the CPA. The Court dismissed the respondents’ cross-appeal of this aspect of the motion judge’s order.

  1. No.

As the motion judge appropriately noted, recognition of a fiduciary duty in this case was plainly inconsistent with the wording of s. 174.1 of the LTCHA, which expressly authorized the MLTC to consider, in addition to the interests of LTC residents, factors that included “the availability of financial resources for the management and operation of the long-term care home system…” As the Supreme Court in Elder Advocates made plain (at paras. 43-45), a statutory discretion to spread limited resources among competing groups is inherently inconsistent with the recognition of a fiduciary duty, which requires utmost loyalty to the beneficiaries’ interest above all others. Therefore, the motion judge had correctly struck the fiduciary duty claim.

  1. No.

The motion judge identified the appellants’ core allegation as being that the respondent failed to take potentially life-saving action in a timely manner. Relying on Leroux 2021, the motion judge found that mere inaction or delay does not engage s. 7 of the Charter.

The Court found no reversible error in the motion judge’s finding that the appellants’ “core allegation” was that the Crown Officers failed to respond to the threat of COVID-19 in LTC homes in a timely manner. While it was true that the Claims impugned the manner in which Ontario responded to COVID-19 in the LTC homes, the repeated complaint was that the measures adopted were delayed, vague and inadequate. In other words, as described by the motion judge, the appellants’ claim was that the government response was “too little, too late.”

Section 7 of the Charter does not create a positive obligation on the state to take measures to ensure that each person enjoys life, liberty, or security of the person: Gosselin at paras. 81-82. The Court noted that the s. 7 Charter claim should be struck since the appellants had failed to plead that any deprivation they may have experienced was contrary to the principles of fundamental justice. The Court further noted that the appellants’ statement of claim in this case pleaded that the respondent’s response to COVID-19 in LTC homes was “arbitrary”, and an arbitrary law may violate principles of fundamental justice. However, “arbitrariness” in the context of s. 7 has a narrow and specific meaning, namely, that the impugned measure bears no relation to the objective that lies behind the enactment: Abarquez v. Ontario, 2009 ONCA 374, 95 O.R. (3d) 414, at para. 49.

To properly plead arbitrariness sufficiently to ground a s. 7 claim, the appellants would have to have pleaded that the impugned measures bore no relationship with the goal of suppressing COVID-19. But as noted above, their core allegation was that the measures implemented in LTC homes had not gone far enough or should have been adopted earlier. There was no allegation that the measures adopted were wholly unrelated to the goal of suppressing COVID-19.


Sanei v. Debarros, 2024 ONCA 104

[Hourigan, Roberts and Coroza JJ.A.]

Counsel:

P. Forget and S. Hewagama, for the appellant

Ong, J. Lea and J. Conway, for the respondent

Keywords: Torts, Negligence, MVA, Civil Procedure, Summary Judgment, Limitation Periods, Discoverability, Reasonable Diligence, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., ss. 4, 5, Insurance Act, R.S.O. 1990, c. I.8., s. 267.5, Ontario Regulation 461/96Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, s. 4.3, Everding v. Skrijel, 2010 ONCA 437, Fennell v. Deol, 2016 ONCA 249, Morrison v. Barzo, 2018 ONCA 979, Peixeiro v. Haberman, [1997] 3 S.C.R. 549, Dubreuil v. Lalande, 2014 ONSC 7433, Rockford v. Haque, 2019 ONSC 474, Yasmin v. Alexander, 2016 ONCA 165, Gyorffy v. Drury, 2015 ONCA 31, Halley v. TTC, 2018 ONSC 6093, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, K.L.B. v. British Columbia, 2003 SCC 51

facts:

On February 2, 2013, the appellant was injured in a motor vehicle accident. On March 2, 2016, the appellant commenced an action against the respondent for several hundred thousand dollars in damages for the “permanent and serious injuries” that he alleged were caused by the accident and that constituted a serious and permanent impairment of his physical and psychological functions. The appellant also pleaded that he did not discover “until recently” that his injuries would meet the threshold set out in s. 267.5 of the Insurance Act, R.S.O. 1990, c. I.8.

The respondent denied responsibility for the accident and for the appellant’s injuries and brought a motion for summary judgment to dismiss the appellant’s action as statute-barred.

The motion judge allowed the respondent’s motion, finding that the appellant’s action was statute-barred. The appellant appealed the dismissal of his action.

issues: 

Did the motion judge err by failing to make a specific finding as to when the appellant discovered, or reasonably ought to have discovered, his injuries and, in consequence, when the limitation period started to run?

holding: 

Appeal dismissed.

reasoning: 
  1. No

The limitation period in an action for personal injuries arising out of a motor vehicle accident starts to run when the claimant knows, or reasonably ought to have known, that their injuries meet the statutory deductible and threshold of serious and permanent impairment under s. 267.5 of the Insurance Act.  To overcome the presumption in s. 5(2) of the Limitations Act, 2002, a person with a claim need only prove that they did not know of their permanent and serious impairment on the date of the accident, not that they exercised due diligence. Where the presumption is rebutted, the limitation period begins to run on the earlier of the two dates contemplated in ss. 5(1)(a) and (b). Unlike ss. 5(2), s. 5(1)(b) imports the “reasonable person” standard and requires consideration of whether the claimant exercised due diligence.

In considering reasonable discoverability of a claim, “[t]he court must be satisfied that a reasonable person in the plaintiff’s circumstances ought to have discovered the claim, and the date of such reasonable discovery must be determined.” Moreover, it is insufficient for the court to say that the claim “was discoverable ‘before the expiry of the limitation period’, without explaining why.”

A new medical imaging result or a specific diagnosis can constitute evidence necessary to support a claim for serious and permanent impairment, especially where the impairment worsens over time or where the initial prognosis was that symptoms would improve. However, when there is no evidence of a change in the plaintiff’s condition, delayed discovery of a permanent impairment may instead be because they failed to make reasonable inquiries.

The motion judge failed to make a specific finding of the discovery date, alluding only to a general time period, namely, “within the two-year time period”. However, the error did not amount to a reversible error that tainted the entirety of the judgment.

First, although he did not mention a specific date for the commencement of the limitation period, the motion judge referenced the correct analysis and correctly instructed himself that discoverability in this context referred to when the appellant first knew or ought to have known that a claim would be an appropriate remedy for the loss. He tethered his conclusion to the timing of the evidence of the appellant’s serious and permanent impairment.

The motion judge detailed in his reasons the uncontroverted evidence that recounted the consistent history, severity and permanence of the appellant’s injuries following the accident. The evidence set out physical injuries that the appellant said emerged almost immediately following the accident and persisted to the present day.

The Court disagreed with the appellant’s contention that the limitation period did not start to run as he did not have medical opinions in the form required under s. 4.3 of O. Reg. 461/96. The evidentiary proof set out in s. 4.3 that a plaintiff is required to produce on a threshold motion or at trial is different from the evidence sufficient to trigger a plaintiff’s discovery of a cause of action and the commencement of the limitation period for bringing an action. When an action progresses, a total absence of medical evidence and a lack of intention to adduce such evidence can be a basis for summary dismissal. A physician’s evidence that meets the strict and elevated requirements in s. 4.3 is not necessary for a plaintiff to have reasonable knowledge of a substantial chance of success. Though the specific forms of evidence the appellant had to support his claim continued to develop, the record indicated that he had equivalent knowledge supporting the same substantial chance of success more than two years earlier. This body of evidence was sufficient to trigger the commencement of the limitation period.

Finally, that the motion judge in his reasons sometimes interchanged “serious and permanent injuries” with “serious and permanent impairment” was of no moment and reflected the wording used in the appellant’s statement of claim. The motion judge’s reasons demonstrated that he was alert to the alleged nature and extent of the appellant’s injuries and to the correct standard under the Insurance Act of “permanent serious impairment”.


Student A v. Toronto French School, 2024 ONCA 83

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

Counsel:

D. Bhatia, for the moving party (M54678)/responding party (M54771)

R. Bucholz and E. Wall, for the responding parties (M54678)/moving parties (M54771), Toronto French School, N.G., J-B.U., J.R. and A.L.

S. Hargreaves, for Student C by her Litigation Guardian and Student D by his Litigation Guardian

Keywords: Education Law, Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Vexatious Litigation, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 7(3), 7(5), 19(1), 134(3), Criminal Code, R.S.C. 1985, c. C-46, Rules of Civil Procedure, r. 2.1.02, Weidenfeld v. Weidenfeld, 2022 ONCA 860, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, Ncube v. Hassen, 2022 ONCA 840, Bunker v. Veall, 2023 ONCA 501, London Health Science Centre v. R.K. (1997), 152 D.L.R. (4th) 724 (Ont. S.C.), Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822

facts:

The appellant, Student A, sought a review of the order of Sossin J.A., a single judge of the Court, refusing to stay the order of Dineen J., case management judge, pending appeal, and refusing to stay all other proceedings before the case management judge. The respondents, together, the “TFS Respondents”, brought their own motion to quash the appeal on the basis that the Court had no jurisdiction to hear the appeal.

The appellant issued a statement of claim for damages and other relief resulting from his expulsion from the Toronto French School. At a case conference, counsel for the appellant brought a motion seeking a declaration that certain of the TFS Respondents and their counsel were guilty of various crimes under the Criminal Code, specifically perjury and public mischief.

The case management judge invited the appellant to make submissions as to why his motion should not be dismissed. The appellant failed to do so. Instead, he submitted “written objections” which stated that “[t]hese are not the written submissions by Student A as to why the motion should not be dismissed pursuant to Rule 2.1.01”, alleged bias and prejudice on the part of the case management judge, and asked that the matters be transferred to another judge. Counsel for the TFS Respondents took the position that the case management judge should dismiss the appellant’s Criminal Code motion.

issues: 
  1. Did the Court’s motion judge err in refusing a stay of proceeding pending appeal?
  2. Should the Court quash the appeal?
holding: 

Motion granted.

reasoning: 
  1. No

The Court’s motion judge correctly identified the applicable principles, applied them, and reached a reasonable conclusion. The motion judge noted that, while he could not make a final determination on the jurisdiction of the Court in the underlying appeal, it was likely that the Court did not have jurisdiction to hear this appeal because the case management judge’s order was interlocutory, not final. The Court held that this finding was properly taken into account in deciding whether the appeal raised a serious issue.

The motion judge was correct that the case management judge did not have jurisdiction to grant the order requested in the Criminal Code motion. Civil courts have no authority to make binding declarations of illegality or criminal guilt, and there is no provision in the Criminal Code or the Courts of Justice Act that empowers them to do so on a civil motion.

A finding of criminal guilt in this context would be based only on the evidentiary record put forward by the parties, rather than based on more complete evidence that may be available to a prosecutor. The Court concluded that the availability of a more appropriate procedure, in this case before a justice of the peace, was an accepted reason to deny declaratory relief. Accordingly, the motion judge did not err in considering the case management judge’s lack of jurisdiction in his determination that there was no serious issue to be tried on the appeal.

  1. Yes

The Court noted that where the action as a whole has not been resolved and the order resolves one issue in the litigation but not all, the appeal should be brought before the Divisional Court not the Court of Appeal. The case management judge’s order did not finally resolve all of the issues in the litigation and the action, in some form, will proceed. The order was therefore entirely procedural and interlocutory. Accordingly, the Court had no jurisdiction to hear the appeal.

As noted by the case management judge, the appellant was not prevented from laying an information and thereby causing a criminal investigation. However, criminal allegations cannot be adjudicated in a civil court, where the only evidence available is of the parties (whereas in criminal cases, the prosecutor may have more evidence available to them). The Court saw no error in the case management judge’s conclusion that the proper route for bringing any complaints under the Criminal Code was before a justice of the peace, and not in civil proceedings.


SHORT CIVIL DECISIONS

Margel v. Dawson, 2024 ONCA 97

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

Dawson, acting in person, but not appearing

Bourassa and A. (Qurrat-ul-ain) Tayyab, for the respondents

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Enforcement, Possession, Civil Procedure, Writs of Possession, Stay Pending Appeal

OZ Optics Ltd. v. XL Insurance Company PLC, 2024 ONCA 95

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

Counsel:

Lesage, for the appellants

Kestenberg, for the respondents

Keywords: Contracts, Insurance, Lawyer and Client, Conflicts of Interest, Costs

Phong v. Nguyen, 2024 ONCA 91

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

Counsel:

M.H. Tweyman, for the appellant

Kim, for the respondent

Keywords: Civil Procedure, Orders, Enforcement, Contempt, Costs

Sun v. Cheng, 2024 ONCA 102

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

Jia, for the appellant

Gfeller and G. Tighe, for the respondents H.W., a.k.a. J.W., and Peaceland Realty Group Inc., a.k.a. Royal LePage Peaceland Realty

Juda and E. Farrugia, for the respondents W.C., a.k.a. R.C., and Homelife Best Choice Realty Inc.

Keywords: Contracts, Real Property, Agency, Breach of Fiduciary Duty, Torts, Negligence, Limitation Periods, Discoverability, Rules of Civil Procedure, r.20,  Limitations Act, 2002, S.O. 2002, c. 24, Sched. B

Yurkovich v. Citibank Canada, 2024 ONCA 98

[Gillese and Copeland JJ.A. and Wilton-Siegel J. (ad hoc)]

Counsel:

Doris and S. Sherrington, for the respondents/moving parties

Harrison and P. Saini, for the appellants/responding parties

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Amending Pleadings, Limitations Act, 2002, S.O. 2002, c. 24,  Courts of Justice Act, R.S.O. 1990, c. C.4, s.19(1)(b), Natario v. Rodriguez, 2015 ONCA 227, Fram Elgin Mills 90 Inc. v. Romandale Farms Limited, 2016 ONCA 404,  Boyer v. Callidus Capital Corporation, 2023 ONCA 233


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.