In Bank of Nevis International Limited v. Kucher, the motion judge enforced a forum selection clause in favour of the courts of the Caribbean nation of Nevis, and stayed the action for want of jurisdiction or, in the alternative, on the basis of forum non conveniens. The appeal was dismissed.

In 1284225 Ontario Limited v. Don Valley Business Park Corporation, the Court set aside the application judge’s interpretation of a parking agreement due to the incorrect application of legal principles.

In Henry v. Zaitlen, a MedMal case, the Court dismissed the appeal and upheld the jury’s findings against the doctor on liability and damages.

Crosslink Bridge Corp. v. Fogler, Rubinoff LLP involved the limitation period for assessing a lawyer’s accounts.

In Grandfield Homes (Kenton) Ltd. v. Chen, the Court dismissed an appeal involving a failed real estate transaction. The vendor was successful in retaining the deposits, but was unsuccessful in getting a trial on further damages, as that had not been pleaded in the application record.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Crosslink Bridge Corp. v. Fogler, Rubinoff LLP, 2024 ONCA 230

Keywords: Contracts, Solicitor and Client, Assessments, Civil Procedure, Jurisdiction, Limitation Periods, Solicitors Act, R.S.O. 1990, c. S.15, s 3(a)(b), 4, 11, Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997), 34 O.R. (3d) 301 (C.A.), Shapiro, Cohen, Andrews, Finlayson v. Enterprise Rent-a-Car Company. (1998), 38 O.R. (3d) 257 (C.A.), Re Reid and Goodman & Goodman (1974) O.R. (2d) 447 (H.C.), Bunt v. Assuras (2003), 63 O.R. (3d) 622 (S.C), Fiset v. Falconer, 2005 CanLII 33783 (Ont. S.C.)

Bank of Nevis International Limited v. Kucher, 2024 ONCA 240

Keywords: Breach of Contract, Torts, Defamation, Civil Procedure, Private International Law, Jurisdiction, Forum Selection Clauses, forum non conveniens, Novatrax International Inc. v. Hägele Landtechnik GmbH, 2016 ONCA 771, Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722, Haaretz.com v. Goldhar, 2018 SCC 28, Van Breda v. Village Resorts Ltd., 2012 SCC 17

Varjacic v. Radoja, 2024 ONCA 233

Keywords: Unincorporated Voluntary Associations, Governance

Grandfield Homes (Kenton) Ltd. v. Chen, 2024 ONCA 236

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Civil Procedure, Applications, Trial of Issue, Bifurcation, Rules of Civil Procedure, rr. 14.05, 38.04, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Angeloni v. Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051 Estate of Francesco Angeloni, 2021 ONSC 3084, Primont (Castelmont) Inc. v. Friuli Benevolent Corporation, 2023 ONCA 477

1284225 Ontario Limited v. Don Valley Business Park Corporation, 2024 ONCA 247

Keywords: Contracts, Interpretation, Civil Procedure, Appeals, Standard of Review, Palpable and Overriding Error, Correctness, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19

Henry v. Zaitlen, 2024 ONCA 243

Keywords: Torts, Negligence, MedMal, Civil Procedure, Jury Trials, McLean v. McCannell, [1937] S.C.R. 341, Stilwell v. World Kitchen Inc., 2014 ONCA 770, Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, Sacks v. Ross, 2017 ONCA 773, Cheung v. Samra, 2022 ONCA 195,  Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, El Dali v. Panjalingam, 2013 ONCA 24, Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831, Vancouver-Fraser Park District; Graham v. Hodgkinson (1983), 40 O.R. (2d) 697 (C.A.), Adam v. Campbell (1950), 3 D.L.R. 449 (S.C.C.), Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 (B.C.C.A.), Lapointe v. Hôpital Le Gardeur, [1992] S.C.R. 351, Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, McLean v. Knox, 2013 ONCA 357, Wade v. C.N.R, [1978] 1 S.C.R. 1064

Short Civil Decisions

Grillone (Re), 2024 ONCA 244

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Orders, Abuse of Process, Vexatious Litigants, Rules of Civil Procedure, r. 37.16

Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2024 ONCA 241

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Orders, Variation, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199

Hart v. Balice, 2024 ONCA 249

Keywords: Civil Procedure, Appeals, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 140(1), Rules of Civil Procedure, rr. 2.1.03(1), 59.06(2)(a), 61.16(6.1), Canada Mortgage and Housing Corporation v. Hart, 2023 ONSC 3544, Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320

CIVIL DECISIONS

Crosslink Bridge Corp. v. Fogler, Rubinoff LLP, 2024 ONCA 230

[Miller, Copeland and Gomery JJ.A.]

Counsel:

J. Radnoff, for the appellants

H. Abramsky, for the respondents

Keywords: Contracts, Solicitor and Client, Assessments, Civil Procedure, Jurisdiction, Limitation Periods, Solicitors Act, R.S.O. 1990, c. S.15, s 3(a)(b), 4, 11, Fellowes, McNeil v. Kansa Canadian Management Services Inc. (1997), 34 O.R. (3d) 301 (C.A.), Shapiro, Cohen, Andrews, Finlayson v. Enterprise Rent-a-Car Company. (1998), 38 O.R. (3d) 257 (C.A.), Re Reid and Goodman & Goodman (1974) O.R. (2d) 447 (H.C.), Bunt v. Assuras (2003), 63 O.R. (3d) 622 (S.C), Fiset v. Falconer, 2005 CanLII 33783 (Ont. S.C.)

facts:

The appellants appealed the order of the motion judge setting aside an assessment order under the Solicitors Act (the “Act”) as statute-barred and ordering them to pay the respondents’ outstanding fees.

The matter came before the motion judge as a result of the respondents challenging the jurisdiction of the assessment officer at the outset of the scheduled assessment on the basis that reference for assessment of at least some of the accounts was statute-barred. That question turned, in part, on whether the accounts were final or interim. The assessment officer referred the issue of whether the accounts were final or interim to a judge for directions.

issues:

1. Did the motion judge err in finding that all the accounts were final accounts?
2. Did the motion judge err in finding that an assessment of the first 29 accounts was statute-barred?
3. Did the motion judge err in her analysis of the last three accounts?

holding:

Appeal allowed, in part.

reasoning:

1. No.

The appellants argued that the motion judge erred in finding that all of the accounts were final accounts. The appellants argued that only the last account, delivered on October 22, 2018 (after the assessment order was issued), was a final account and that the previous 31 accounts were interim. The appellants argued that the motion judge erred in law in failing to consider if the accounts were part of “a continuum”.

The Court was not persuaded that the motion judge erred in law in her analysis of whether the accounts were final or interim. The Court found no legal error in her summary of the legal principles to be applied in considering whether an account is final or interim. Although the language of “a continuum” is used in some of the cases to describe the relationship between multiple accounts that are found to be interim, it is not a distinct legal test.

Nor was the Court persuaded that the motion judge committed a palpable and overriding error of fact. The case law is clear that the question of whether an account is final or interim is a question of fact. The finding of the trial judge that all of the accounts were final was open to her on the record and was owed deference.

2. No.

In light of the finding that all of the accounts were final, there was no error in the motion judge’s conclusion that an assessment of the first 29 accounts at issue was statute-barred.

The first 29 accounts were delivered between May 5, 2014, and May 29, 2017, inclusive. They were all paid by the appellants. The assessment order was issued October 3, 2018. Unless special circumstances are established by the appellants, s. 4(1) of the Act bars a reference for assessment after 12 months from the delivery of the account. Unless special circumstances are established, s. 11 of the Act bars a reference for assessment where an account has been paid. The appellants did not seek to establish special circumstances either before the motion judge or on appeal.

Section 3(a) of the Act allows a client to requisition the delivery and assessment of a solicitor’s account, where the retainer is not disputed and there are no special circumstances. Read in conjunction with s. 3(b), which provides for requisition of an assessment “of a bill already delivered, within one month from its delivery”, it is clear that s. 3(a) of the Act only applies in circumstances where a solicitor has not yet delivered an account at the time the assessment is requisitioned. Section 3(a) has no limitation period because a limitation period in relation to assessment of a solicitor’s account cannot run before an account is delivered to the client.

The assessment order issued by requisition in this case did not reference either s. 3(a) or 3(b) of the Act. The text on the preprinted portion of the order included language ordering the solicitors to “deliver to the applicant(s) a bill of fees, charges and disbursements” within 14 days of service of the order. That language appeared consistent with s. 3(a) of the Act. But whatever the language of the order, the circumstances were clear that s. 3(a) of the Act could not apply to the first 31 accounts because they had already been delivered to the appellants at the time the assessment order was requisitioned.

3. Yes.

The motion judge applied the same analysis to all 32 accounts in considering whether assessment was statute-barred. This was a legal error.

The motion judge approached the issue of the limitation period for all the accounts on the basis that the appellants were required either: (i) to show that all the accounts were interim and not final, or (ii) to establish special circumstances. This was correct for the first 29 accounts, but not for the last three accounts.

The second-last and third-last accounts were dated November 27, 2017, and April 6, 2018. They were not paid by the appellants. The trial judge did not err in finding that these accounts were final accounts. The Superior Court’s discretion with respect to ordering assessment of unpaid accounts where referral for assessment is sought between one and twelve months after the account is delivered derives from the court’s inherent jurisdiction as circumscribed by the Act. The statutory bar in s. 3(b) of the Act applies to disallow an automatic right of assessment by requisition where assessment is sought more than one month after the account was delivered. However, the requirement to establish special circumstances in ss. 4 and 11 of the Act do not apply because the accounts are less than twelve months old (s. 4) and unpaid (s.11).

However, the motion judge did err in holding that the appellants were required to establish special circumstances to have these accounts referred for assessment. A different legal analysis applies to accounts where the assessment is sought between one and twelve months after the account is delivered and the account remains unpaid by the client.

A client is not required to show special circumstances in order to obtain a referral for assessment of accounts that have been delivered more than one month but less than twelve months before an assessment is sought, and that remain unpaid. Rather, a judge of the Superior Court has discretion whether to exercise its inherent jurisdiction to order an assessment. In considering whether to exercise the discretion, a judge need only be satisfied that it is just and equitable that a reference for an assessment be made. In Fellowes, the Court held that, for unpaid accounts where assessment is sought between one and twelve months after the account is delivered: “In the usual circumstances, little is required for that jurisdiction to be exercised”.

With respect to the last account, the trial judge erred in law in finding an assessment was statute-barred. No limitation period was triggered for the last account as it fell within s. 3(a) of the Act. At the time the assessment order was requisitioned, on October 3, 2018, the last account had not yet been delivered to the appellants.

Bank of Nevis International Limited v. Kucher, 2024 ONCA 240

[Roberts, George and Monahan JJ.A.]

Counsel:

J.P.E. Hardy and R. O’Hare, for the appellant

R. W. Staley, N. J. Shaheen, and M. Kawatra, for the respondents

Keywords: Breach of Contract, Torts, Defamation, Civil Procedure, Private International Law, Jurisdiction, Forum Selection Clauses, forum non conveniens, Novatrax International Inc. v. Hägele Landtechnik GmbH, 2016 ONCA 771, Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722, Haaretz.com v. Goldhar, 2018 SCC 28, Van Breda v. Village Resorts Ltd., 2012 SCC 17

facts:

The appellant, Bank of Nevis International Limited (“BONIL”), is an international bank headquartered in Nevis, a small island in the Caribbean Sea. The respondent, M.K, is BONIL’s former Vice-President of Investments. The other respondent, BNI Holdcorp Ltd. (“BNI”), was incorporated by M.K in order to buy shares in BONIL. In 2019, all of BONIL’s shares were sold to Petrodel Investment Advisors (“Petrodel”), a Nevis corporation owned by M.P, the former CEO and a Director of BONIL.

The dispute between the parties arose from an investment agreement negotiated by M.K and M.P in December 2019. This agreement between BONIL and BNI (and not M.K personally), provided that BNI would purchase shares in BONIL from Petrodel, conditional upon M.K receiving approval from Nevis’ Regulator of International Banking to be a beneficial shareholder.

The agreement included confidentiality provisions, and an exclusive jurisdiction clause (the “Forum Selection Clause”) as follows:

Any disputes arising out of this Investment Agreement will only be heard exclusively in the Courts which exercise jurisdiction in the Federation of St. Kitts and Nevis.

BONIL commenced an action in Ontario against M.K for violating the agreement’s confidentiality provisions and for defamation. The respondents, relying on the above noted Forum Selection Clause, moved to dismiss the action. BONIL argued that the Superior Court of Justice had jurisdiction because M.K had lived and worked in Ontario.

The motion judge allowed the respondents’ jurisdiction motion, determining that BONIL’s action should be heard in Nevis and not Ontario. In the event he was wrong, and the Forum Selection Clause did not apply, the motion judge indicated that he would have relied on the doctrine of forum non conveniens as “many of [the] factors clearly favour[ed] Nevis as the preferable forum and [that] none favour[ed] Ontario.”

issues:

1. Did the motion judge err in finding that the Forum Selection Clause applied?
2. Did the motion judge err in his forum non conveniens analysis by assigning insufficient weight to M.K’s connection to Ontario and by assigning too much weight to M.K’s connection to Nevis?

holding:

Appeal dismissed.

reasoning:

1. No.

There were two aspects to BONIL’s argument that the Forum Selection Clause does not apply. First, it argued that defamation was not a dispute “arising out of” the investment agreement. Second, even if it was, it would not apply to any claims against M.K, who was not a party to the agreement.

After reviewing the allegations in BONIL’s statement of claim, the motion judge concluded that the “broader allegations of defamatory statements were entirely bound up in the dispute over the investment agreement and the alleged breach of its confidentiality provision”. This conclusion was open to the motion judge, for two reasons. First, BONIL’s statement of claim specifically alleged a breach of the agreement’s confidentiality clauses. And second, M.P himself acknowledged that the investment agreement was the “genesis” of some aspects of the action.

There was also no basis to interfere with the motion judge’s conclusion that the Forum Selection Clause applied to M.K. BONIL, in its amended statement of claim, made a concerted effort to tie M.K to BNI, treating them essentially as one and the same. BONIL further alleged that M.K had “complete control” over BNI and asserted that M.K should be held personally liable for BNI’s conduct. The motion judge was entitled to rely on these pleaded facts. Given how the issues are framed by BONIL in its pleadings, the Court saw no way to separate the conduct of M.K. from BNI. Accordingly, and as found by the motion judge, the two could not be severed from each other.

2. No.

BONIL also failed to identify any reversible error in the motion judge’s assessment of M.K’s connections to Ontario. As the Supreme Court explained in Haaretz.com v. Goldhar, “presumptive connecting factors must not give rise to an irrebuttable presumption of jurisdiction”. While M.K’s former Ontario residence, and the possibility that he committed the alleged tort in Ontario, may serve as presumptive connecting factors as identified in Van Breda v. Village Resorts Ltd, these factors were not determinative in the forum non conveniens analysis. Rather, the analysis emphasizes fairness and efficacy by “adopting a case-by-case approach” to the question of jurisdiction.

The motion judge, during the course of his forum non conveniens analysis, applied the correct legal principles and considered the relevant factors. He thoroughly examined the relationship between the parties and the two jurisdictions in question, Nevis and Ontario. He thoroughly examined the relationship between the parties and the two jurisdictions in question, Nevis and Ontario. He found that the “relative strengths of the parties’ connections to each forum” was a factor that “strongly favour[ed] Nevis” for several reasons, including that M.K was served with the statement of claim in Nevis; no witnesses or evidence were located in Ontario; BNI is incorporated in Nevis; M.K was no longer a resident of Ontario; and there was no basis to conclude that either M.K or BNI had any assets in Ontario.

Varjacic v. Radoja, 2024 ONCA 233

[Miller, Copeland and Gomery JJ.A.]

Counsel:

D. Gouge, for the appellant

J. Samac, for the respondents A.V., D.Z. and N.T.

D.V., acting in person

B.S., acting in person for the respondent N.R.

Keywords: Unincorporated Voluntary Associations, Governance

facts:

The Hamilton branch of the Royal Yugoslav Army Combatants’ Association in Canada was an unincorporated, voluntary organization whose main asset was a 16-acre parcel of land that once served as the centre of an active community. The memberships lapsed as well as the terms of the last members of the board of directors. The gates of the property were locked. Eventually, some former members and directors sought to revive the association. Others disagreed and argued that the land should be sold and the funds applied toward other purposes. Disagreement about the future of the land led to litigation.

The September 1 judgment, which was not appealed, provided a process by which the association could enroll new members, hold an annual general meeting (AGM), and elect a new board of directors. The process was detailed and complex, but it did not suffer from ambiguity, vagueness, or other indeterminacy that could frustrate its application.

Matters did not go as envisioned. The plaintiffs, including the appellant, held an AGM on November 27, 2021 and a slate of directors were elected. However, the respondents disputed the validity of that AGM and held a second AGM on December 4, 2021, at which other directors were elected.

The plaintiffs then brought a motion seeking a declaration that the November AGM was validly held, and the November board was validly elected. The respondents brought a motion seeking the same but with respect to the December AGM and board election.

The motion judge concluded that the proper procedures were not followed by the plaintiffs and refused to grant the declaration that the November AGM and board were valid. The motion judge granted a declaration that the board elected at the December AGM meeting was validly elected. One of the plaintiffs appealed.

issue:

Was the November AGM held in accordance with the September 1 judgment?

holding:

Appeal allowed.

reasoning:

No.

The respondents argued that whether the respondents satisfied the terms of the September 1 judgment was a question of interpretation and that the Court ought to defer to the motion judge’s interpretation of her own order. The Court did not agree with the respondents.

The respondents did not identify any aspect of the September 1 judgment that admits of competing interpretations. Nor could they. The terms of the judgment were clear and did not depend on exercises of judgment or the application of vague criteria. What the respondents argued, essentially, was that the motion judge was entitled to determine what constituted sufficient compliance with the September 1 judgment.

During the motion below, the respondents advised the motion judge that they had complied with the September 1 judgment. They compiled a voluminous motion record that they claimed demonstrated their compliance. The motion judge accepted that the documents were as described by the respondents. But, as the appellant demonstrated on appeal, on closer inspection the documents showed that the respondents fell substantially short of compliance with the September 1 judgment.

The application for membership forms included in the record postdated the AGM, suggesting they were not completed in advance of the AGM as required. Most of the application forms did not indicate that the applicants affirmed that they met the criteria for admission set out in the constitution. There were no membership applications submitted for the respondents themselves, who had purportedly been elected to the board. The provisions for appointing a chair and note-taker, set out in paragraphs 2(e) and (f) of the judgment, were not complied with.

The respondents argued that the motion judge was entitled to determine that, on her interpretation of the September 1 judgment, they had satisfied the terms for holding a valid AGM. The Court disagreed that that was what the motion judge held. The Court was persuaded that the finding was premised on a misapprehension of the evidence and that the order must be set aside.

The appeal was allowed, however, the Court declined to declare either AGM or board to be valid. The Court ordered that a new AGM must be held in accordance with the September 1 judgment for the purpose of electing a board of directors.

Grandfield Homes (Kenton) Ltd. v. Chen, 2024 ONCA 236

[Roberts, George and Monahan JJ.A.]

Counsel:

M. Doyle and S. Jamshidimoghadam, for the appellant

S. Toole, for the respondent

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Damages, Civil Procedure, Applications, Trial of Issue, Bifurcation, Rules of Civil Procedure, rr. 14.05, 38.04, Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Angeloni v. Di Millo v. 2099232 Ontario Inc., 2018 ONCA 1051 Estate of Francesco Angeloni, 2021 ONSC 3084, Primont (Castelmont) Inc. v. Friuli Benevolent Corporation, 2023 ONCA 477

facts:

The proceedings arose from a failed real estate transaction between the parties. On May 5, 2017, the respondent agreed to purchase a home to be built by the appellant for $3,350,000. The respondent paid several deposits totalling $502,500. The closing date was extended twice at the respondent’s request, first until January 14, 2019, and then again until February 20, 2019.

On February 19, 2019, the respondent advised that she was refusing to close the transaction, alleging that the appellant misrepresented the square footage and finishings of the house, which she discovered when viewing the finished house in early February 2019.

The appellant commenced an application to obtain declaratory relief that the respondent breached the agreement of purchase and sale and that it was entitled to retain the deposits paid by the respondent. The application judge found the respondent in breach and ordered that the appellant was entitled to retain the deposits. The application judge declined to grant the order that there be a trial of the issue of damages beyond the forfeited deposits.

issues:

1. Did the application judge err in finding the appellant’s request for a trial on damages was not sufficiently pleaded?
2. Did the application judge err in finding that a trial on damages would result in a bifurcation and multiplicity of proceedings?
3. Did the trial judge err in finding that there would be prejudice to the respondent?

holding:

Appeal dismissed.

reasoning:

1. No.

The application judge did not make any error in dismissing the appellant’s request for a trial on damages.

The well-established principle is that absent amendment, lawsuits are to be “decided within the boundaries of the pleadings,” and the parties are entitled to have a resolution of their dispute based on the pleadings. The appellant’s claims for a declaration seeking additional damages and an order of a trial of that issue were not specifically pleaded. The appellant never amended its pleadings, either before or at the hearing of the application.

The Court was not persuaded by the appellant’s argument that the application judge failed to consider the unfairness to the appellant in denying its claim for relief. As the appellant had four years to amend its pleadings or file affidavit evidence, but did not do so.

2. No.

The Court agreed that ordering the trial of the additional damages would result in a bifurcation of the issue of damages, an unnecessary multiplicity of proceedings, and potential prejudice to the respondent.

The appellant did not ask to set aside the application judge’s entire judgment, let alone his order that the deposits were forfeited. As a result, the issue of damages would be bifurcated and could result in inconsistent findings with respect to the quantum of the appellant’s damages.

3. No.

Allowing the bifurcation of the issue of damages would give rise to an unnecessary multiplicity of proceedings, which would squander scarce judicial resources and prejudice the efficient and due administration of justice.

Moreover, there would be a potential prejudice to the respondent. The respondent was entitled to respond to the case as framed in the appellant’s pleadings and could very well have responded differently had the appellant pleaded its claim for additional damages. A claim for forfeited deposits already paid is different from a claim for the loss of the market value of the subject property.

1284225 Ontario Limited v. Don Valley Business Park Corporation, 2024 ONCA 247

[Roberts, George and Monahan JJ.A.]

Counsel:

B. Radnoff and V. Ford, for the appellants

C. E. Reed, for the respondent

Keywords: Contracts, Interpretation, Civil Procedure, Appeals, Standard of Review, Palpable and Overriding Error, Correctness, Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19

facts:

This appeal involved the application judge’s interpretation of s. 4 of the parties’ parking agreement dated May 19, 1972 (“Parking Agreement”), and the calculation of the new parking rate that the appellants should be required to pay to the respondent.

Section 4 of the Parking Agreement provides as follows:

[Appellants] agree[s] to pay parking rates to [respondent] with respect to the parking spaces which [respondent] shall be required to make available to [appellants] from time to time, in accordance with the provisions of this agreement. The rates to be paid by [appellants] to [respondent] for each such parking space, shall be the average of commercial, bona fide, arm’s length parking rates being charged from time to time to the public using parking facilities located within one-half mile from the Project Lands and which parking facilities are serving office buildings.

issue:

Should the application judge’s decision be set aside?

holding:

Appeal allowed.

reasoning:

Yes.

Absent error, the application judge’s interpretation of the parties’ Parking Agreement was owed considerable appellate deference and was reviewable on a standard of “palpable and overriding error”. However, a correctness standard applies if the appeal involves the incorrect application of a legal principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor.

The Court found that no deference should be owed to the application judge’s decision in this case. The application judge’s analysis proceeded on the basis of the incorrect application of a relevant legal principle. In particular, the application judge found that s. 4 of the Parking Agreement was unambiguous even though fundamental terms material to the calculation of the new parking rate were undefined and unclear. The relevant terms included “commercial, bona fide, arm’s length parking rates” being charged to “the public” using parking facilities “serving office buildings”. A key ambiguity arising from these terms was whether the relevant “parking rates” should be based on hourly, daily, weekly, or monthly rates.

It was also unclear from the terms of s. 4 whether parking facilities used by tenants of an office building could be included within the calculation of average rates or whether such parking facilities should be excluded, notwithstanding the fact that the appellants were themselves tenants of the office building being served by the respondent’s parking lot.

Moreover, notwithstanding his finding that s. 4 of the Parking Agreement was clear and unambiguous, the application judge proceeded to resolve the ambiguities by relying on contested, hearsay evidence offered by the principal of the respondent, which the application judge had found to be inadmissible as expert evidence. The application judge appeared to take judicial notice of the fact that it was “commonly known” that landlords charge tenants a lower parking rate and thus such rates cannot be considered to be “commercial, bona fide, arm’s length” parking rates charged to members of “the public”. In making this finding, the application judge incorrectly relied in part on the lay opinion of the respondent’s affiant who was not independent and, as the application judge acknowledged, could not be treated as an expert.

This caused the application judge to reject out of hand the appellants’ expert evidence that took into account rates charged by landlords to tenants, and to conclude that expert evidence on this issue was unnecessary and irrelevant. This also led him to ignore the fact that the parking rate to be charged to the appellants was a monthly rate, in accordance with the parties’ historical practice. This formed part of the factual matrix that should have been taken into account.

The Court found that as a result of these analytical errors, the application judge’s decision must be set aside and the interpretation of s. 4 of the Parking Agreement be considered afresh.

The Court made the following findings:

1. The parking rates to be used for the calculation of average rates should be monthly rates for parking in the relevant area.
2. Given the nature of the neighbourhood comparators, it may very well be that the only comparable commercial monthly rates within the relevant geographic area are those charged by landlords to tenants, whether tenants of the adjacent office buildings or tenants of the parking spaces alone. Section 4 does not exclude those comparators. In the context of the entirety of s. 4, “the public” may include tenants (who are members of the public) or other members of the public. “Public” could be viewed in isolation; it had to be construed in conjunction with the other modifiers in that sentence, in particular, “commercial, bona fide, arm’s length parking rates being charged from time to time to the public using parking facilities…serving office building.” In other words, the appropriate comparators were monthly rates charged to parties who are at “arm’s length” that are “commercial” and “bona fide”, using parking facilities serving office buildings. This could include tenants.
3. The only admissible evidence regarding monthly rates was provided by the appellants’ expert.
4. The appellants’ expert calculated the average monthly parking rate for comparable parking lots serving office buildings in the relevant geographic area as $57.22 per stall in December 2019 and $71.36 per stall in April 2022. The appellants’ obligation under s. 4 of the Parking Agreement is to pay the monthly parking rates being charged “from time to time” to users of parking lots in the relevant area. Accordingly, given that the average monthly rate in December 2019 was $57.22 per stall, and the average monthly rate as of April 2022 was $71.36 per stall, these are the rates that the appellants were obliged to pay pursuant to s. 4 of the Parking Agreement.
5. Since the respondent first requested an updated parking rate on June 1, 2019, the appellants accepted that the updated parking rate should apply from June 1, 2019, onward.

Henry v. Zaitlen, 2024 ONCA 243

[Roberts, Coroza and Gomery JJ.A.]

Counsel:

F. McLaughlin, S. Sugar and C. Windsor, for the appellant

B.A. MacFarlane and M. Hodgins, for the respondent

Keywords: Torts, Negligence, MedMal, Civil Procedure, Jury Trials, McLean v. McCannell, [1937] S.C.R. 341, Stilwell v. World Kitchen Inc., 2014 ONCA 770, Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, Sacks v. Ross, 2017 ONCA 773, Cheung v. Samra, 2022 ONCA 195,  Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, El Dali v. Panjalingam, 2013 ONCA 24, Vancouver-Fraser Park District v. Olmstead, [1975] 2 S.C.R. 831, Vancouver-Fraser Park District; Graham v. Hodgkinson (1983), 40 O.R. (2d) 697 (C.A.), Adam v. Campbell (1950), 3 D.L.R. 449 (S.C.C.), Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 (B.C.C.A.), Lapointe v. Hôpital Le Gardeur, [1992] S.C.R. 351, Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, McLean v. Knox, 2013 ONCA 357, Wade v. C.N.R, [1978] 1 S.C.R. 1064

facts:

This case involves Mr. H.’s medical condition and allegations of negligence against Dr. Z., the neurologist responsible for Mr. H.’s treatment and care. The contention was that Dr. Z failed to properly investigate Mr. H.’s condition despite indications from medical reports and symptoms, leading to a delayed diagnosis of a spinal dural arteriovenous (SDAV) and subsequent paralysis.

On January 27, 2010, Mr. H. attended the emergency room of the Brampton Civic Hospital (the “Hospital”) complaining of lower back pain, numbness down the left leg and pelvic area, and difficulty urinating and voiding. Mr. H. came under the care of Dr. Z., a neurologist. Dr. Z. remained Mr. H.’s primary neurologist, notwithstanding the referral to Dr. B and other medical professionals, including a family doctor.

Mr. H. underwent an MRI of his head and cervical spine on March 14, 2010, the results of which were normal. He underwent a second MRI of his lower spine the next day, which showed the same abnormality of the conus and cauda equina nerve roots seen on the lumbar MRI in late January. Dr. H. S., a radiologist interpreted MRI results from March 15, noting Mr. H. was “not improving” and that his condition remained undiagnosed. Dr. H.S. wrote that “formal imaging of the thoracic spinal cord may also be warranted to exclude abnormality at that level.”

On March 23, 2010, Mr. H. returned to the Hospital’s emergency room reporting numbness in his leg, difficulty walking, and difficulty voiding. After Mr. H. was examined by an ER physician, he was discharged home for continued follow up with Dr. Z.

Dr. Z. received the March 14 and 15 MRI results, a copy of Dr. H.S.’s report, and a copy of the March 23 ER record. He also received the results of a bone scan and gallium scan he had ordered on March 5, both of which were normal. He did not take any steps to contact Mr. H. or have him reattend, nor did he order any further investigations, notably an MRI of Mr. H.’s thoracic (or mid-level) spine.

Mr. H. attended Dr. B.’s office on June 2, 2010. Dr. Z. had provided her with his January and February consultation notes, the January and March MRI results, and the results of the spinal fluid tests. However, he did not provide her with a copy of his March 5 record, or the March 23 ER admission note, or otherwise advise her that Mr. H. had gone to the ER that day with an “acute worsening” of some symptoms.

Mr. H.’s condition continued to deteriorate. On July 20, 2010, Mr. H. returned to the Hospital by ambulance, now in a state of paraplegia. Since Dr. Z. was on vacation, Mr. H. was assessed by another neurologist, Dr. M.A. A SDAV fistula diagnosis was confirmed on July 22. The fistula in Mr. H.’s spine was surgically repaired on July 25, 2010.

Mr. Henry underwent physical therapy and recovered his ability to walk. By late 2021, he still experienced pain, uneven gait, and difficulty with daily activities, requiring ongoing treatment. He was unable to return to work.

Mr. H. and his spouse sued Dr. Z. and others involved in his care in 2012. The action was discontinued or dismissed against all defendants except Dr. Z. by the time a trial took place in November and December 2021 before the trial judge and a jury.

The jury awarded Mr. H. general damages, past income loss, future income loss and future care costs totaling just under $1.5 million. It awarded the Estate of his late wife just over $158,000 in damages for loss of care, guidance and companionship, and for past value of loss of housekeeping and maintenance. The trial judge entered judgment based on this verdict (save for an adjustment of the damages awarded to his late wife’s Estate for past loss of housekeeping and maintenance, which the parties agreed should be reduced), plus pre-judgment interest, subrogated claims, and costs.

issues:

1. Did the jury err in finding that Z breached the standard of care?
2. Did the jury’s answer reveal that it did not act judicially?
3. Did the jury err in making the future damages award that it did?

holding:

Appeal dismissed.

reasoning:

1. No.

The Court held that a jury could reasonably find that the appellant breached the relevant standard of care, relying on the evidence of the respondents’ expert neurologist, Dr. Y., and rejecting the opinions of the appellant’s neurology experts on the standard of care.

In Dr. Y.’s view, the need for further investigation was heightened after Mr. H. attended the emergency room on March 23 with a worsening of some of his symptoms. Testifying that in the absence of a diagnosis or any explanation for the patient’s symptoms, Dr. Z. should have ordered a thoracic MRI pending the scheduled consultation with Dr. B. In Dr. Y.’s view, Dr. Z. also should have arranged to see Mr. H.

The Court did not agree that Dr. Y’s acknowledgment that it was “hard to ignore” the diagnosis of Mr. H’s SDAV fistula as a confession of hindsight bias. The trial judge instructed the jury to avoid hindsight bias in determining the appropriate standard of care for a general neurologist in Ontario in 2010. The jury was presumed to have heeded this instruction.

In a civil appeal of a jury verdict, an appellate court’s role is not to reweigh the evidence or consider whether most judges would have reached the same conclusion as the jury. There was an evidentiary basis, recognized by the trial judge in his instructions, to conclude that Dr. Z. breached the standard of care. The jury’s verdict was entitled to great deference.

2. No.

There were two ways to approach the jury’s explanations for its conclusion that Dr. Z. breached the standard of care and caused Mr. H.’s damages. The first way, advocated by the appellant, required that each numbered sentence in the explanation be read independently of the others. This would mean that the jury found that Dr. Z. breached the standard of care in three separate and different ways, each of which independently caused damages to Mr. H. The second approach was to read the jury’s explanations holistically.

The Court held that the jury’s answers should be read holistically, as it provided the answers’ contents, and aligned with the governing interpretative principles, the evidence, the parties’ arguments, and the trial judge’s summary of the evidence and instructions on the law. Read holistically, the jury’s explanation was also consistent with the trial judge’s summary of the evidence in his final instructions.

Read as a whole, the jury’s answers were consistent with the respondents’ theory of the case as articulated in closing argument at trial. Relying on the evidence of Dr. Y., Dr. K., and Dr. L., the respondents’ counsel contended that the jury should find Dr. Z. breached the standard of care. She argued that, but for this breach, Mr. H.’s SDAV fistula would have been detected and diagnosed earlier, with the result that he would have suffered fewer permanent injuries.

The Court held that an appellate court should presume that the jury considered the evidence and heeded the judge’s instructions. If the Court were to accept the appellant’s interpretation of the jury’s answers, it would have to conclude that the jury ignored the trial judge’s summary and instructions, the evidence, and the parties’ arguments in favour of a theory of the case that was not supported, argued, or even referred to during the trial. There was no basis to do so here.

The jury was asked whether the respondents had proved “on a balance of probabilities, that but for the breach of the standard of care, Mr. H.’s injuries would not have occurred”. The jury answered yes. In its explanation, it stated that the breach caused the injuries “because of the delay in diagnosis”, and that, had the SDAV fistula been diagnosed before June 2010, Mr. H. “would have been in a more favourable position for treatment and recovery with likely fewer deficits”. This echoed the respondents’ submissions, in closing argument, on causation: “[W]e say it is likely that Dr. Z.’s actions caused Mr. H’s severe and permanent impairments. Because thoracic imaging would have detected it, it would have led to a timely diagnosis and it likely would have prevented Mr. H’s permanent injuries.”

The jury was not required to explicitly state that the diagnosis was delayed because Dr. Z. did not order thoracic imaging. This was implicit when the jury’s explanation on causation was read together with its explanation on the standard of care, which noted that thoracic imaging had not been done.

Nor was the jury required to state anything further to affirm that the respondents had proven causation on a balance of probabilities, given its “yes” answer to the question set out on the jury sheet. Although it might have been preferable for the jury to use different language in its explanation, the Court did not infer that causation was found based only on a loss of a chance. That would have been contrary to its answer to the main question and to the judge’s instruction, which the jury was presumed to have followed.

3. No.

These were findings that the jury could reasonably make. There was nothing inconsistent or improper about them. A jury’s verdict is entitled to a high degree of deference on appeal. A verdict should not be set aside if it can be reasonably supported by the evidence. This principle applies to damages awards as well as conclusions on liability.

The jury’s past and future income loss awards were not in conflict, nor were they unsupported by evidence. The trial judge correctly instructed the jury that, to award Mr. H. damages for future income loss, it would have to find a real and substantial risk that he would earn less than he would have, but for the injuries caused by Dr. Z.’s negligence.

The trial judge also made it clear, however, that the jury was free to reach its own conclusions regarding Mr. H.’s ability to return to work and how long he would continue to work given his injuries. As a result, the judge instructed the jury that it could award an amount different than the amount suggested by either economic expert. This instruction was not challenged by the appellant either at trial or on this appeal.

SHORT CIVIL DECISIONS

Grillone (Re), 2024 ONCA 244

[Benotto J.A. (Motions Judge)]

Counsel:

S.G., for the respondent, acting in person (M54911, M54921) and for the moving party byway of cross-motion, acting in person (M54913)

M. Bacal, for the moving party Bluecore Capital Inc. (M54911) and respondent byway of cross-motion (M54913)

S. K. Gfeller, for the respondent by way of cross-motion (M54913) and moving party (M54921) DL

Keywords: [KEYWORDS]

Avedian v. Enbridge Gas Distribution Inc. (Enbridge Gas Distribution), 2024 ONCA 241

[Roberts, George and Monahan JJ.A.]

Counsel:

C. Carter, for the moving parties

J. G. Norton, for the responding parties, Enbridge Gas Distribution Inc. operating as Enbridge Gas Distribution and Lakeside Performance Gas Services Ltd. operating as Lakeside Gas Services

C. K. Boggs, for the responding parties, Alpha Delta Heating Contractor Inc. and ALD

C. I.R. Morrison, for the responding parties, TQB Heating and Air Conditioning Inc. and BB

D. Reiter and P. Copeland, for the responding party, Enbridge Inc.

Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Jurisdiction, Final or Interlocutory, Orders, Variation, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199

Hart v. Balice, 2024 ONCA 249

[Paciocco, George and Favreau JJ.A.]

Counsel:

M.H., acting in person

N. Groot, for the respondent

Keywords: Civil Procedure, Appeals, Vexatious Litigants, Courts of Justice Act, R.S.O. 1990, c. C.43, ss 140(1), Rules of Civil Procedure, rr. 2.1.03(1), 59.06(2)(a), 61.16(6.1), Canada Mortgage and Housing Corporation v. Hart, 2023 ONSC 3544, Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320

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