COURT OF APPEAL SUMMARIES (April 29 – May 3)

By John Polyzogopoulos on May 5, 2024

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Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of April 29, 2024.

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In Bertrand v. Academic Medical Organization of Southwestern Ontario, the appellants received medical research funding under an agreement, overseen by the respondent, despite not being a party to the agreement. The issues raised in the appeal included whether the application judge erred in applying the rule in Browne v. Dunn, whether the appellants were intended beneficiaries of the Agreement, and if the court had jurisdiction to review a decision to cease funding. The appeal was dismissed.

Hemmings v. Peng was a complex medical malpractice appeal concerning severe injuries sustained by the respondent following a C-section. In a 118-page decision, the Court allowed the appeals of one treating doctor and the hospital, but dismissed the appeal by the doctor who performed the C-section.

Surridge v. Ross was a family law dispute over the unequal division of the proceeds of sale of a home jointly owned by an unmarried couple where only one of them contributed to the down-payment and mortgage payments. The motion judge ordered an unequal division of the proceeds on the basis of unjust enrichment. The Court dismissed the appeal.

1819472 Ontario Corp. v. John SB General Contractors Limited was a case involving the enforcement of security against a corporation by its creditors (the vendors of the assets of the corporation) following default and misappropriation of funds by the corporation’s principal (the buyer of the assets).

Krmpotic v Thunder Bay Electronics Limited was a wrongful dismissal case involving a carpenter who had been employed for 30 years and who was summarily dismissed without notice or cause following a back injury. The Court upheld the award of 24 months’ pay in lieu of notice and aggravated damages of $50,000.

Jones v Quinn discusses the legal nature and characteristics of an “option” to purchase land and good faith obligations on the part of the seller to cooperate in the exercise of the option by the buyer.

Happy Easter to all those of the eastern Orthodox faiths who are celebrating today!

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Surridge v. Ross, 2024 ONCA 314

Keywords: Family Law, Property, Jointly Held Property, Unjust Enrichment, Remedies, Constructive Trust, Civil Procedure, Summary Judgment, Family Law Rules, O. Reg. 114/99, r. 16, Kerr v. Baranow, 2011 SCC 10, Garland v. Consumers’ Gas Co., 2004 SCC 25, Pecore v. Pecore, 2007 SCC 17

Hemmings v. Peng, 2024 ONCA 314

Keywords: Torts, Negligence, Medical Malpractice, Standard of Care, Causation, ter Neuzen v. Korn, [1995] 3 S.C.R. 674, R v. Doodnaught, 2017 ONCA 781, R. v. S.A.B., 2003 SCC 60, Palichuk v. Palichuk, 2023 ONCA 116, Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2011 BCCA 351, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Nelson (City) v. Marchi, 2021 SCC 41, Clements v. Clements, 2012 SCC 32, Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 (C.A.), Athey v. Leonati, [1996] 3 S.C.R. 458, Saadati v. Moorhead, 2017 SCC 28, Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), Brenenstuhl v. Caldwell, 2020 ABQB 315, R. v. Côté et al., [1976] 1 S.C.R. 595, Frazer v. Haukioja, 2010 ONCA 249, Abbott and Kleysen’s Cartage Co. Ltd. v. Kasza and Ace Construction Company Limited, [1975] 3 W.W.R. 163 (Alta. S.C.), Jones v. Shafer, [1948] S.C.R. 166, Powell v. Guttman (1978), 89 D.L.R. (3d) 180 (Man. C.A.), Sacks v. Ross, 2017 ONCA 773, T.S. v. Adey, 2017 ONSC 397, Arndt v. Smith, [1997] 2 S.C.R. 539, Champoux v. Jefremova, 2021 ONCA 92, Manary v. Strban, 2013 ONCA 319, Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, R. v. G.F., 2021 SCC 20, R. v. R.E.M., 2008 SCC 51, R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.)

Bertrand v. Academic Medical Organization of Southwestern Ontario, 2024 ONCA 319

Keywords: Contracts, Privity, Third Party Beneficiaries, Voluntary Associations, Civil Procedure, Evidence, The Rule in Browne v Dunn, Yan v. Nadarahaj, 2017 ONCA 196, Greenwood Shopping Plaza v. Neil J. Buchanan Ltd., [1980] 2 S.C.R. 228, Fraser River Pile & Dredge Ltd. v. Can-Drive Services Ltd., [1999] 1 S.C.R. 108, Karahalios v. Conservative Party of Canada, 2020 ONSC 3145

Krmpotic v Thunder Bay Electronics Limited, 2024 ONCA 332

Keywords: Contracts, Employment, Wrongful Dismissal, Damages, Mitigation, Aggravated Damages, Joint and Several Liability, Rules of Civil Procedure, r. 76, Lake v La Presse, 2022 ONCA 742, Southcott Estates Inc v Toronto Catholic District School Board, 2012 SCC 51, Lemesani v Lowery’s Inc, 2017 ONSC 1808, Sinnathamby v The Chesterfield Shop Ltd, 2016 ONSC 6966, Honda Canada Inc v Keays, 2008 SCC 39, Wallace v United Grain Growers Ltd, [1997] 3 S.C.R. 701, Matthews v Ocean Nutrition Canada Ltd, 2020 SCC 26, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419

Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 331

Keywords: Environmental Law, Administrative Law, Judicial Review, Civil Procedure, Appeals, Leave to Appeal, Extension of Time, Environmental Protection Act, RSO 1990, c. E.19, s. 141, Ontario Water Resources Act, RSO 1990, c. O.40, s. 100(6), Enbridge Gas Distribution Inc v Froese, 2013 ONCA 131, Duca Community Credit Union Ltd v Giovannoli et al (2001), 142 OAC 146 (CA), Sabatino v Posta Ital Bar Inc, 2022 ONCA 208, Ventin v Director, Haldimand-Norfolk Regional Health Department, [1994] OEAB No 16, Kagawong Power Inc v Ontario (Director, Ministry of the Environment), [2009] 47 CELR (3d) 103

NWG Investments Inc. v. Fronteer Gold Inc., 2024 ONCA 331

Keywords: Torts, Misrepresentation, Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 1.04(1), 24.01, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

1819472 Ontario Corp. v. John SB General Contractors Limited, 2024 ONCA 333

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Security Agreements, Default, Enforcement, Foreclosure, Fraud, Misappropriation, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Order, Limitation Periods, Personal Property Security Act, R.S.O. 1990, c. P.10, s. 65(2), Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5(2), Rules of Civil Procedure, r. 20.05(1), 20.04(4), J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, Skunk v. Ketash, 2016 ONCA 841, Lax v. Lax (2004), 70 O.R. (3d) 520 (C.A.), Kowal v. Shviak, 2012 ONCA 512, Vanden Bussche Irrigation & Equipment v. Kejay, 2016 ONCA 613, Ashak v. Ontario (Family Responsibility Office), 2013 ONCA 375, Walchuk Estate v. Houghton, 2015 ONCA 862, Duha Printers (Western) Ltd. v. Canada, [1998] 1 S.C.R. 975, Atlas (Brampton) Limited Partnership v. Canada Grace Park Ltd., 2021 ONCA 221, Grant Thornton LLP v. New Brunswick, 2021 SCC 31

Drag v. Mehta, 2024 ONCA 334

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Abatements, C.M. Callow Inc. v. Zollinger, 2020 SCC 45, Owen Sound Public Library Board v. Mial Developments Ltd. (1979), 26 O.R. (2d) 459 (C.A.), Petridis v. Shabinsky (1982), 35 O.R. (2d) 215 (H.C.J.), Charles Rickards Ltd. v. Oppenheim, [1950] 1 K.B. 616

Yadeta v. Peel (Municipality) Police Service Board , 2024 ONCA 341

Keywords: Crown Liability, Intentional Torts, Malicious Prosecution, Misfeasance in Public Office, Bad Faith, Civil Procedure, Proceedings Against the Crown, Leave to Commence or Continue Proceedings, Striking Pleadings, No Reasonable Cause of Action, Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, s. 17, Rules of Civil Procedure, r. 21

Jones v. Quinn, 2024 ONCA 315

Keywords: Contracts, Interpretation, Real Property, Agreements of Purchase and Sale of Land, Options, Duty of Good Faith, Duty of Honest Performance, Civil Procedure, Orders, Enforceability, Vagueness, Collateral Attack, Costs, Statute of Frauds, R.S.O. 1990, c. S.19, Guindon v. Canada, 2015 SCC 41, 364021 Alberta Ltd. v. 361738 Alberta Ltd. (1990), 115 A.R. 333 (Q.B.), Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Mitsui & Co. (Canada) Ltd. v. Royal Bank of Canada, [1995] 2 S.C.R. 187, Sudbrook Trading Estate Ltd. v. Eggleton, [1983] 1 A.C. 444 (H.L), Sail Labrador Ltd. v. Challenge One (The), [1999] 1 S.C.R. 265, Jesan Real Estate Ltd. v. Doyle, 2020 ONCA 714, Gatoto v. 5GC Inc., 2024 ONCA 210, Bhasin v. Hrynew, 2014 SCC 71, 2161907 Alberta Ltd. v. 11180673 Canada Inc., 2021 ONCA 590, Lafarge Canada Inc v. Bilozir, 2018 ABCA 416, Erie Sand and Gravel Limited v. Tri-B Acres Inc, 2009 ONCA 709, Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 745, Yan v. Hutchison, 2023 ONCA 97, Garland v. Consumers’ Gas Co., 2004 SCC 25, R. v. Sarson, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, Amtim Capital Inc. v. Appliance Recycling Centers of America, 2014 ONCA 62, Carey v. Laiken, 2015 SCC 17, PrescottRussell Services for Children and Adults v. N.G. (2006), 82 O.R. (3d) 686 (C.A.), Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), Bondy-Rafael v. Potrebic, 2019 ONCA 1026

Short Civil Decisions

Sutherland v. Canadian Imperial Bank of Commerce, 2024 ONCA 338

Keywords: Contracts, Duty of Honest Performance, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Res Judicata

Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2024 ONCA 337

Keywords: Civil Procedure, Striking Pleadings, Documentary Disclosure, Settlements, Disclosure, Rules of Civil Procedure, R. 30.10, Skymark Finance Corporation v. Ontario, 2023 ONCA 234

Flight (Re), 2024 ONCA 336

Keywords: Bankruptcy and Insolvency, Property of the Bankrupt, Choses in Action, Assignment, Flight (Heritage Painters & Services) v. LeBlanc, 2022 ONCA 831

Dreamfund Holdings Inc. v. Yusuf, 2024 ONCA 335

Keywords: Contracts, Civil Procedure, Default Judgments, Rules of Civil Procedure, r 19.08(2), HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894, Male v. The Business Solutions Group, 2013 ONCA 382

Mohammad v. Bakr, 2024 ONCA 347

Keywords: Civil Procedure, Vexatious Litigation, Rules of Civil Procedure, r 2.1, Mohammad v. McMaster University, 2023 ONCA 598, Mohammad v. Munn, 2023 ONSC 4361, Mohammad v. Springer Nature, 2023 ONSC 5523, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733

M v. S, 2024 ONCA 330

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Enforcement, Adjournments, Toronto – Dominion Bank v. Hylton, 2010 ONCA 752

Vertical Horizons Contracting Inc. v. Markham (City), 2024 ONCA 359

Keywords: Contracts, Construction

Alsous v. Shahin, 2024 ONCA 358

Keywords: Family Law, Property

Kisten v. Kosewski, 2024 ONCA 346

Keywords: Real Property, Trusts, Civil Procedure, Reasons for Decision

CIVIL DECISIONS

Surridge v. Ross, 2024 ONCA 314

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

K.V. Stewart, for the appellant

A.B. R. Drury, for the respondent

facts:

The parties were in a romantic relationship but never married. They purchased a home to live in together and took title as joint tenants. The parties did not have any written agreement as to their respective interests in the property. The respondent made the down payment and made all subsequent payments related to the residence. When the parties separated, the appellant left the property while the respondent continued to reside in the home and make all payments. The home was later sold. The respondent brought an application seeking unequal division of the proceeds of the sale from the property based on unjust enrichment. Specifically, he sought reimbursement for the principal portion of the mortgage payments he made, as well as the cost of a new furnace installed as part of the agreement of purchase of sale. In her answer, the appellant sought the equal distribution of the net proceeds without deduction for the cost of the repairs and occupation rent. The respondent brought a motion for summary judgment and the appellant brought a cross-motion for partial summary judgment. The motion judge granted summary judgment in favor of the respondent on the issue of unjust enrichment.

issues:

Did the motion judge err in allowing the unjust enrichment claim?
Did the motion judge err in denying the appellant’s claim for occupation rent?
Did the motion judge err in allowing the respondent to receive credit for the replacement of the furnace and the basement repairs?

holding:

Appeal dismissed.

reasoning:

The motion judge found that the respondent established a prima facie case for absence of juristic reason and the appellant had not rebutted it. There was no evidence that the parties had turned their minds to the consequences of separating, particularly in respect of servicing the mortgage debt and the outcome of the property itself.

The motion judge should have addressed in his reasons whether there was evidence of donative intent at the time the property was acquired in joint names and when the payments at issue were made. In gratuitous transfer situations, the actual intention of the grantor is the governing consideration. However, given the presumption of resulting trust where money or property is advanced by only one party, the onus was on the appellant to demonstrate donative intent. It is clear from the motion judge’s reasons as well as the record that the onus was not met.

The motion judge considered the circumstances of the parties as required by Garland and specifically, the appellant’s claim that her credit worthiness had permitted the purchase of the home. The motion judge found that this claim had not been made out and, even if it had, the appellant’s argument pertaining to her credit worthiness did not provide a juristic reason and was irrelevant to the issue of unjust enrichment. The motion judge could not be faulted for his failure to address the issue of spousal abuse, as it was not the focus of the motion.

There was no basis to interfere with the motion judge’s findings and conclusions. It was acknowledged that the appellant made no financial contribution to the purchase of the home nor to the mortgage and property expenses. Additionally, she profited from the increase in value of her equity in the home and she led no evidence as to what a reasonable rent would be during the period of occupation by the respondent.

The motion judge noted that the respondent provided proof of the cost of replacing the furnace and found that it constituted an improvement to the property. The basement repairs had been required pursuant to the agreement of purchase of sale and had to be made to complete the sale. The appellant failed to present expert evidence that the repairs were unnecessary.

Hemmings v. Peng, 2024 ONCA 318

[Brown, Trotter and George JJ.A.]

Counsel:

Clarke, K. Crain and D. Girlando, for the appellant The Scarborough Hospital

Cruz, D. Charach and A. Spiegel, for the appellants N.T.J. and L.G.P.

Embury, D. Pacheco, A. Oakley, N. Oakley, J.J. Adair and R. Stellick, for the respondents S.H., by her litigation guardian, R.B., R.B. personally, S.C.G. and M.H., minors by their litigation guardian, R.B. and S.H.

facts:

The respondent, S.H., suffered a cardiac arrest on the operating table during a caesarean section at the Scarborough (General) Hospital (“the Hospital”). She subsequently suffered a severe brain injury. The action went to trial solely on the issues of liability. The respondents alleged that S.H.’s injury was caused by the negligence of several of the treating health care practitioners.

S.H. was admitted to the Hospital on April 19, 2009. She was a higher risk patient given her morbid obesity. Around mid-afternoon on April 20, as the induction attempts continued, a spinal (regional) anesthetic was put in place. By early evening, a C-section was performed. The C-section began under the regional anesthetic. Unable to calm S.H., Dr. J decided to convert to a general anesthetic. The C-section continued under general anesthetic for about eight to eleven minutes until the baby, the respondent M.S., was delivered. Shortly after delivery, S.H. had a cardiac arrest that required her resuscitation. As a result of the arrest, she suffered a serious, permanent brain injury.

The trial judge dismissed the action against two of the obstetricians, Drs. O’B and Pe. The trial judge granted judgment against the appellants, Dr. Pa, Dr. J, and the Hospital for an equal share of the respondents’ agreed damages of $12 million. The physicians and Hospital appealed. They sought an order setting aside the judgment and dismissing the action against them.

issues:

Did the trial judge err in finding that Dr. Pa breached the standard of care when he acted as S.H’s primary obstetrician before her admission to the Hospital?
Did the trial just err in his findings of factual and legal causation regarding Dr. Pa and the Hospital’s pre-delivery acts and omissions?
Did the trial judge err in finding direct liability against the Hospital?
Did the trial judge err in his findings related to Dr. J?

holding:

Dr. Pa’s and Hospital’s appeals allowed. Dr. J’s appeal dismissed.

reasoning:

The trial judge articulated the proper standard of care against which to assess the acts and omissions of Dr. Pa. His conduct must be assessed in light of the conduct of other ordinary specialists who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada in that field.

The trial judge found that Dr. Pa breached the applicable standard of care in three respects: (1) Dr. Pa failed to order a standard pregnancy test as part of his examinations; (2) during initial consultations, Dr. Pa failed to raise with S.H. the option of terminating her pregnancy; and (3) Dr. Pa failed to document the multiple risk factors associated with S.H.’s pregnancy or a plan of management in her clinical records.

The only ground of appeal concerning the breach of standard of care was his failure to raise the option of terminating her pregnancy with S.H. during her initial consultations.

In his reasons, the trial judge relied on the 1988 CMA policy on Induced Abortion, as well as the 2006 SOGC Clinical Practice Guidelines on Induced Abortion. Dr. Pa pointed to a 2007 letter to the editor of the CMA Journal that set out the CMA’s position on how a doctor who would not provide abortions should respond to a patient’s request. Dr. Pa argued that the implication of this letter was that, in 2008, a physician was not obligated to raise the issue of abortion with a patient who did not raise the topic.

The Court was not persuaded by Dr. Pa’s submissions. The trial judge did not rest his finding of breach of the standard of care solely on the literature cited, but also relied on the evidence of obstetrical experts and their opinions about the meaning and practical application of the policy and guideline. The respondents’ obstetrical experts testified that the standard of care required Dr. Pa to initiate a non-judgmental and patient-focused discussion around the options of terminating the pregnancy and the risks of not doing so. In reaching that conclusion, both relied on the fact that S.H. had come to Dr. Pa for contraception, did not want to become pregnant, and the pregnancy carried significant risks.

Dr. Pa also submitted the trial judge improperly relied on a 2015 article regarding the incidence of abortions in unintended pregnancies to inform his determination of the standard of care applicable in 2008. The Court saw no reversible error by the trial judge in doing so. Given that the appellant’s expert relied on the 2015 article, the relevant data in the article were generated in 2005, the expert was cross-examined on the article without objection, and the article was marked as an exhibit without objection, the Court saw no basis for the appellant’s position on appeal that the trial judge somehow erred in referring to the article.

Yes, in regard to the legal causation analysis.

Drs. Pa and J submitted the trial judge erred by relaxing the “but for” test for factual causation to merely require that the plaintiff demonstrate a reasonable person “would not brush aside as farfetched” the existence of a causal link.

To succeed in a negligence action a plaintiff must demonstrate that (i) the defendant owed her a duty of care, (ii) the defendant’s behaviour breached the standard of care, (iii) the plaintiff sustained damage, and (iv) the damage was caused in fact and law by the defendant’s breach. The causation analysis involves two distinct inquiries: whether the defendant’s breach was the factual cause of the plaintiff’s loss and, in addition, the legal cause of the loss.

Factual causation

The test for factual causation is the “but for” test. A plaintiff must show, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred. A plaintiff need not establish the defendant’s negligence was the sole cause of her injury.

Legal causation

To establish the defendant’s liability a plaintiff must also prove the defendant was a legal cause of her injury. The basic inquiry is: were the injuries suffered by the plaintiff linked in the right way to the carelessness of the defendant? Mere possibility that the harm would occur is not sufficient. In Mustapha, the Supreme Court stated the degree of probability or likelihood that would satisfy the reasonable foreseeability requirement is a “real risk”, that is “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched”

Analysis of this ground of appeal

The appellants contended that the trial judge erroneously lessened the plaintiffs’ burden of proof to establish factual “but for” causation on the balance of probabilities. The Court was not persuaded by this submission. While the trial judge did not use the term “legal causation” in his reasons, he used other language to express his legal causation analysis. While a crisper differentiation in the reasons between factual and legal causation certainly would have been helpful, the trial judge recognized the two concepts as distinct and properly identified their main elements.

Causation grounds of appeal

The first causation ground of appeal was that there was insufficient evidence to permit the trial judge to find that S.H. would have chosen an abortion if Dr. Pa had informed her of that option.

The Court saw no reversible error in the trial judge’s conclusion that had Dr. Pa told S.H. at an early stage about the option of an abortion, S.H. would have chosen that course of action.

For the second causation ground of appeal, Dr. Pa submitted that the causation analysis was tainted by reversible error, as it was based on a breach of the standard of care that the trial judge did not find, namely a failure to advise S.H. about the multitude of risks associated with her pregnancy. The trial judge had found a different breach of the standard of care, namely a failure to document such risks.

The respondents argued that the trial judge made an implicit finding that Dr. Pa breached the standard of care by not discussing risks of the pregnancy with S.H. When the reasons in this case were approached in that manner, the Court was persuaded by the respondents’ submission.

For Dr. Pa’s legal causation ground of appeal, both he and the Hospital, in respect of Nurse S.J., submitted that the trial judge erred in conducting his legal causation analysis.

In the Court’s view, the trial judge committed reversible error on the questions of whether the breaches of the standard of care caused, in law, the damages suffered by S.H. Regarding Nurse S.J., the major error committed by the trial judge was his failure to conduct any legal causation analysis. The trial judge conducted a “but for” counter-factual exercise and set out his findings as to what probably would have happened had Nurse S.J. advised S.H. to come to the Hospital. The Hospital submitted this counter-factual exercise was tainted by legal error. The Court accepted this submission.

In the case of the trial judge’s specific analysis of whether Nurse S.J.’s breaches caused, in law, S.H.’s injuries, the Court concluded the trial judge did conflate the two concepts. Inconsistency existed in the trial judge’s reasons, not only concerning his liability conclusion in respect of Nurse S.J but also in his legal causation finding in respect of Dr. Pa.

Accordingly, the Court allowed the appeal by Dr. Pa, set aside the Judgment against him, and dismissed the action against him. Similarly, the Court allowed the appeal by the Hospital in respect of Nurse S.J.’s acts and omissions and dismissed that part of the action against the Hospital based on vicarious liability.

Yes.

The Hospital submitted that the trial judge found it directly liable for negligence on the basis of its failure to assemble the records detailing S.H.’s pregnancy. The Hospital argued that it was not open to the trial judge to make such a finding in light of an agreement the parties made at the outset of the trial. The Court was persuaded by the Hospital’s submission.

The Hospital submitted the trial judge’s finding of direct liability based on its “failure to assemble the records detailing S.H.’s pregnancy” should be set aside for two reasons:

The finding concerned a matter that lay outside the scope of the issue the parties placed before the trial judge for adjudication as a result of the Resolution Agreement.
Alternatively, and in any event, the finding amounted to a bald conclusion by the trial judge.

A judge commits an error of law when he or she decides a proceeding “on a basis that was not ‘anchored in the pleadings, evidence, positions or submissions of any of the parties”. The Resolution Agreement between the respondents and the Hospital defined the issue those parties wanted the trial judge to adjudicate: the April 8, 2009, telephone call between S.H. and Nurse S.J.

The trial judge’s finding that the Hospital was negligent for failing to assemble the records detailing S.H.’s pregnancy rested on (i) the lack of availability of records for review by the Drs H, O’B and J, none of whom were involved in the April 8 call, and (ii) the lack of availability of the records Dr. Pa provided to S.H. to take to the Hospital on April 18. Neither of those issues concerned the April 8, 2009, call.

The Court added that the trial judge’s finding amounted to the assertion of a bald conclusion. It was not supported by the adjudicative analysis required to assess a claim of negligence. A finding of negligence unsupported by any analysis cannot stand.

No, except for one of the standard of care grounds of appeal.

Dr. J was asked to participate in the C-section. The C-section proceeded under regional anesthetic and due to complications, general anesthetic drugs were administered.

The trial judge found that Dr. J fell below the standard of care in two main respects: (1) his decision to convert S.H. from a regional to a general anesthetic was made negligently in that the decision was made before he had attempted or exhausted all reasonable options to avoid administering a general anesthetic and (2) he was negligent in intubating S.H.’s airway once he began to administer the general anesthetic. The trial judge further found that Dr. J’s negligent conduct was “the direct cause” of the cardiac arrest suffered by S.H. Finally, the trial judge did not accept the defendant doctors’ submission that S.H.’s cardiac arrest resulted from a rare phenomenon called amniotic fluid embolism. Instead, he found that the arrest was the result of an “anesthetic accident or complication”.

Standard of Care grounds

The first ground of appeal was that the trial judge erred in finding that Dr. J was negligent in converting S.H. to a general anesthetic without making reasonable efforts to maintain the regional anesthetic. The Court accepted that the evidence at trial was overwhelming that delivery under regional anesthetic was the safest, converting to a general anesthetic created significant additional risks; (iii) and those risks were exacerbated by obesity. When faced with that conflicting evidence, the trial judge made specific findings of credibility regarding the testimonies of the witnesses. Those findings of credibility and the further findings of fact that flowed from them were open to the trial judge to make on the record before him. The appellant, Dr. J, did not demonstrate any palpable and overriding error in them.

The second ground of appeal was that the trial judge erred by failing to find that any error in Dr. J’s decision to convert to a general anesthetic was merely an error in judgment and did not amount to negligence. The Court saw no reversible error in the trial judge’s conclusion that Dr. J fell below the standard of care in deciding to convert to general anesthetic before all reasonable options had been attempted and exhausted.

The third ground of appeal was that there was no expert evidence to support the trial judge’s finding that Dr. J’s intubation of S.H. fell below the standard of care. The Court found that the trial judge’s reasons, when read in conjunction with the extensive record, failed to explain what act or omission of Dr. J’s during the intubation process fell below the standard of care. The Court accepted the submissions of Dr. J that the finding he was negligent in intubating S.H. lacked proper evidentiary support.

Causation Grounds

Regarding the causation grounds of appeal, the appellant submitted that the trial judge erred in finding that the cardiac arrest was the result of an anesthetic accident or complication.

Three portions of the trial judge’s reasons, when read together and in light of the record, explained the “anesthetic accident and complication” that caused the cardiac arrest. First, the reasons explained why a general anesthetic should be used only as a last resort in the case of a C-section procedure. Next, the reasons contained a specific finding of the sequence of events that accompanied the conversion to a general anesthetic. Finally, the reasons detailed the consequences of the attempts at intubation on S.H.’s blood pressure and oxygen levels. The Court was satisfied that the trial judge explained the “what” and the “why” of his conclusion that an anesthetic accident and complication caused S.H.’s cardiac arrest.

For the second ground appeal in relation to causation, the appellant argued that the trial judge failed to perform any analysis of factual causation in respect of Dr. J’s breaches of the standard of care. “But for” causation need only be established on the balance of probabilities; the law does not require demonstrating certitude or scientific precision. Accordingly, the record supported the trial judge’s conclusion that Dr. J’s negligence was the “direct cause” of S.H.’s injuries.

Bertrand v. Academic Medical Organization of Southwestern Ontario, 2024 ONCA 319

[van Rensburg, Zarnett and George JJ.A.]

Counsel:

MacKenzie and J. Colangelo, for the appellants

A. Stephens, for the respondent

facts:

The appellants, gynecologic oncologists, had been receiving funding for their academic services pursuant to an agreement known as the AHSC AFP Template Funding Agreement (the “Agreement”). The respondent, AMOSO, comprised of several parties to the agreement, oversees fund distribution, despite not being a party to the Agreement itself.

On April 1, 2015, several parties to the Agreement entered the Provincial Oncology Alternative Funding Plan (“POAFP”). The AMOSO’s Resource Sub-Committee subsequently recommended that the allocation of funds to members of the Obstetrics and Gynecology plan be discontinued. AMOSO’s Governing Committee accepted that recommendation. The appellants were afforded an opportunity to make submissions seeking a reversal of AMOSO’s decision. AMOSO maintained its decision to cease funding to the appellants. The appellants commenced an application in the Superior Court. The application was dismissed.

issues:

Did the application judge err by failing to apply the rule in Browne v. Dunn?
Did the application judge err by finding that the parties to the Agreement did not intend for the appellants to benefit from its provisions?
Does the court have jurisdiction to review the correctness of AMOSO’s decision?

holding:

Appeal Dismissed.

reasoning:

The common law rule in Browne v. Dunn requires counsel to confront a witness they are cross-examining with any conflicting evidence they intend to call later on in the proceeding. The purpose is to alert the witness to the fact that counsel intends to impeach his or her evidence and to ensure that they are given an opportunity to respond. The appellants argued that because there was nothing to contradict their evidence that the intent of the Agreement was to benefit them individually, and because they were not cross-examined on this aspect of their evidence, the application judge had to find that they were entitled to the benefit of the Agreement. The application judge rejected the appellants’ argument that a signed declaration acknowledging their agreement to be bound by the terms of the Agreement entitled them to the benefit of the Agreement’s provisions. He interpreted it as an acknowledgment by each appellant that the physician organization represented their interests and could bind them contractually. In circumstances like these, the rule in Browne v. Dunn has no application.

The common law doctrine of privity of contract stands for the proposition that “no one but the parties to a contract can be bound by it or entitled to it.” The application judge recognized that there are exceptions to the doctrine, pursuant to the “principled approach” identified in Fraser River. First, he found that there was no express intention in the Agreement that an individual physician would benefit from any contractual provision, nor could one be implied. Second, he found that it “would not accord with commercial reality and common sense” if each physician had the right to commence proceedings (under either the funding agreement’s ADR provisions or in court) each time AMOSO made a decision with which they disagreed. These findings were amply supported by the record.

The application judge was right to conclude that a court’s review of the discretionary decision of an unincorporated association was limited to whether it acted in accordance with its internal rules, the principles of natural justice, and whether the decision was bona fide. Given the application judge’s finding that AMOSO’s decision-making process – detailed in the respondents’ affidavits and in the minutes of AMOSO’s sub-committee’s meetings – not only met, but exceeded, these requirements, he correctly concluded that it was not open to him to assess the correctness of AMOSO’s decision. In other words, the appellants’ contractual rights were satisfied by the process that AMOSO conducted, regardless of the correctness of the outcome.

Krmpotic v Thunder Bay Electronics Limited, 2024 ONCA 332

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

Counsel:

D.Zulianello, for the appellants

R. Switzer, for the respondent

facts:

D.K began working as a carpenter in 1976 and became a journeyman carpenter in 1983. In 1987, he started working in Thunder Bay, Ontario, for the appellants, Thunder Bay Electronics Limited (TBEL) and Hill Street Financial Services (Hill Street). Within 18 months of being hired, D.K was made the Building Maintenance Supervisor, a position he held until his employment ended.

On June 13, 2016, after nearly 30 years of service, the appellants terminated his employment without notice or cause. At that time, he was 59 years old and had just returned from medical leave following back surgery. D.K refused the severance package offered at the termination meeting and began this action for wrongful dismissal. The trial judge found D.K to be a loyal and responsible employee, entitled to a reasonable notice period of 24 months, but dismissed his claim for mental distress damages due to lack of medical evidence. However, the trial judge awarded D.K $50,000 for aggravated/moral damages due to the manner in which his employment was terminated. The trial judge ordered the appellants jointly and severally liable for the damage awards.

issues:

1) Did the trial judge err in finding the respondent was unable to mitigate during the reasonable notice period due to physical incapacity?

2) Did the trial judge err in awarding aggravated damages?

3) Did the trial judge err in holding the appellants jointly and severally liable?

holding:

Appeal Dismissed.

reasoning:

1) No.

The appellants asserted that the period of reasonable notice must be reduced based on D.K’s failure to mitigate damages, claiming that the trial judge erred by concluding that D.K was unable to mitigate due to physical incapacity during the reasonable notice period. They argued that the trial judge found, without medical evidence, that D.K could not work because of physical incapacity and ignored existing medical evidence suggesting otherwise. However, the trial judge’s decision was affirmed, noting that D.K’s attempts to find alternate employment were scant, yet his physical limitations during the notice period were significant due to his age, recent back surgery, and the demands of his occupation. The trial judge accepted the evidence presented by D.K, his wife, and his son, establishing that D.K could not undertake comparable employment due to his physical incapacity, supported by his failed attempt to work in his son’s business in November 2017. The Court concluded that the trial judge made no palpable and overriding error in finding that D.K was unable to mitigate during the notice period given his physical incapacity.

2) No.

The appellants argued that the trial judge erred in awarding D.K aggravated damages, contending that following the precedent set by Honda Canada Inc v Keays, aggravated damages could only be awarded if there was evidence of mental distress caused by the manner of dismissal, and that the trial judge wrongly considered mental distress and the manner of dismissal separately. The Court did not accept this narrow view of the employer’s duty of good faith and concluded that the trial judge properly identified D.C’s conduct in the termination meeting as breaching the duty of good faith and causing harm deserving of compensation. The Court found that the principles of honest performance and good faith in employment contracts supported the trial judge’s decision. The trial judge found that D.C’s conduct during the termination was neither candid nor forthright and amounted to bad faith, causing D.K significant distress, including anxiety and depression. These findings justified the award of aggravated damages, and thus, the Court saw no reason to interfere with the trial judge’s determination on this issue.

3) No.

The appellants argued that the trial judge erred in making them jointly and severally liable for the damages awards, claiming that TBEL was D.K’s sole employer at the time of his termination and that there were no grounds for joint and several liability. The Court rejected the argument. The trial judge clearly stated in his reasons that D.K was employed by both appellants for about 30 years until his termination without cause or notice. Furthermore, evidence presented by D.K and the appellants, including the testimony of D.C and the details in the Settlement Memorandum confirmed that D.K’s employment was handled between the two appellants throughout his tenure. The Settlement Memorandum drafted by the appellants and presented at the termination explicitly defined both TBEL and Hill Street as D.K’s employers. The Court found that the trial judge made no error in holding both appellants jointly and severally liable.

Continental Imperial Exploration Ltd v. Ontario (Environment, Conservation and Parks), 2024 ONCA 328

[Roberts J.A. (Motions Judge)]

Counsel:

AS, acting in person and for Continental Imperial Exploration Ltd., moving parties

Clements and S. Valair, for the responding party, the Director, Ministry of the Environment, Conservation and Parks

facts:

The moving parties sought an extension of time to bring a motion for leave to appeal the January 19, 2024 order of Sheard J (the “Motion Judge”).

issues:

Does the justice of the case warrant an extension of time to seek leave to appeal?

holding:

Motion dismissed.

reasoning:

No.

The Court noted that the relevant criteria informing the question of whether the justice of the case warranted the requested extension were well known and included the following: a timely intention to appeal; the length of and explanation for the delay; prejudice to the responding party; and the merits of the appeal. The lack of merit of the proposed appeal can be determinative. The question was whether the appeal had so little merit that the moving parties should have been deprived of the important right to appeal. In the Courts view, that was the case here.

The Court found that AS’s medical issues did not adequately explain the delay in seeking leave to appeal. There was continuing prejudice to the public interest by the delay to the timely enforcement of the Director’s order under the Environmental Protection Act. The motion also faltered because the moving parties’ proposed appeal had no merit and was doomed to failure. The lack of merit alone could suffice to dismiss the motion.

The motion judge declined to exercise her discretion to extend the time for the moving parties to bring a judicial review application, dismissed the moving parties’ motion for an extension of time and granted the responding party’s motion to dismiss the application for judicial review. The motion judge determined that the moving parties had failed to establish that there were apparent grounds for relief or that there was merit to their application. She found that the application had no prospect of success. As the Tribunal found, there was no question that the moving parties had received notice of the Director’s decision. The motion judge concluded that the delay would cause prejudice to the public interest because of the delay to the enforcement of the Director’s order with which the moving parties had not complied.

NWG Investments Inc. v. Fronteer Gold Inc., 2024 ONCA 331

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

R. Bucholz, D. Rosenbluth and M. Chowdhury, for the appellant

K.E. Thomson and A M.C. Alexander, for the respondent

Keywords: Torts, Misrepresentation, Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 1.04(1), 24.01, Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

facts:

NWG Investments Inc. appealed from the motion judge’s dismissal for delay of its 2014 action, which asserted claims based on events that took place in 2007 and 2008. NWG’s claims centred on allegations that the respondent, a former officer of the respondent Fronteer Gold Inc., misrepresented to NWG the ability to extract uranium expeditiously from the ground in Nunatsiavut (Labrador).

issues:

Was the motion judge’s assessment of the issue of prejudice infected by reversible error?
Does the motion judge’s “theory of prejudice” reward defendants who “lie in the weeds”?

holding:

Appeal dismissed.

reasoning:

The legal test on a motion to dismiss for delay under r. 24.01 of the Rules of Civil Procedure is as follows: an action should not be dismissed unless the delay is (i) inordinate, (ii) inexcusable, and (iii) prejudicial to the defendants such that it gives rise to a substantial risk that a fair trial of the issues will not be possible.

The Court saw no error. In the Court’s view, at its core this ground of appeal simply reflected NWG’s disagreement with the weight the motion judge placed on the factors of document availability, witness relevance, and witness memory. While NWG may disagree with how the motion judge weighed those factors in the specific circumstances of this case, the Court saw no palpable and overriding error in her analysis, nor did the Court regard her conclusion as unreasonable in the circumstances.

The Court was not persuaded by this submission, especially given the motion judge’s unchallenged findings that NWG’s delay in prosecuting its action was inordinate and inexcusable. NWG’s action has not gone beyond the pleadings stage and that it was only in 2021 – seven years after the Ontario action was started and approximately 14 years after the events in question – that NWG, through new counsel, got around to suggesting that the parties should discuss a discovery plan.

By commencing an action in the Ontario courts, NWG was under the obligation to move it along to the “most expeditious” determination on its merits. The motion judge obviously concluded that NWG had failed to discharge that obligation. She did not err in so doing. Her decision to dismiss NWG’s action for delay was a reasonable one in the circumstances.

1819472 Ontario Corp. v. John SB General Contractors Limited, 2024 ONCA 333

[Miller, Favreau and Copeland JJ.A.]

Counsel:

V.S. Scalisi and R. Azimov, for the appellants

S. Tock, for the respondent

facts:

SB owned the common shares of John SB General Contractors Limited (“JBGC”), which owned Kleinberg Nursery, and SB’s husband owned the nursery’s lands. SB and her husband sold the business and lands to Z. Z incorporated two corporations to acquire the nursery business and lands: 1819472 Ontario Corp. (“9472”) purchased the lands with a mortgage, and 1819471 Ontario Corp. (“9471”) acquired the shares of both 9472 and JGBC.

After a default on a promissory note, 9472 sold the land, causing SB to object, as it jeopardized her collateral. Z then disbursed the sale proceeds, before assigning 9471 and JBGC into bankruptcy. Investigations revealed misuse of funds from the sale of the property by Z. SB became sole officer, director, and shareholder of 9472 and caused 9472 to commence action to recover funds disbursed by Z. The respondent corporation, 9472, brought an action alleging that Z caused it to loan approximately $2.5 million to JBGC, causing another related corporation to default on a promissory note to SB in the process.

issues:

Did the court have jurisdiction to hear the appeal?
Did the motion judge err in finding that the limitation period did not begin to run in May 2017, when they argue that SB first became aware of 9472’s claim?
Did the motion judge err in finding that SB was reasonably diligent in making inquiries as to the appellants’ identities?

holding:

Appeal dismissed.

reasoning:

Yes.

Notwithstanding that the parties took no issue with the court’s jurisdiction to hear the appeal, the form of the order under appeal did not make the legal basis of the order obvious, which necessitated some effort to determine whether the Court in fact had jurisdiction.

There is a presumption that, unless the motion judge specifically references the powers under r. 20.05(1) or r. 20.04(4) of the Rules to make binding determinations of fact or law, and specifies what material facts or questions of law are now not in dispute, the motion judge did not intend to make binding determinations of fact or law, and those determinations will remain to be made by the trial judge.

A motion judge who intends to make a final determination on a question of fact or law ought to state the rule under which the determination has been made in the order issued. Although a failure to make such a statement in the order suggests that no such determination or finding was made, this failure is not determinative: in some cases, to determine what has been decided, it is necessary to look at the reasons.

The parties understood that the motion judge had intended to decide the legal question of whether the action had been commenced within the time period stipulated by the Limitations Act, 2002, and that this was intended to be a final order. The reasons for decision made this conclusion abundantly clear, although the formal order did not. The limited scope of the motion explained why the motion judge did not grant summary judgment in favour of the plaintiff: the liability of the appellants was simply not before him for determination. The only issue was the limitations defence.

Although it would have been advisable for the motion judge to have referenced r. 20.04(4) in the order, there was no confusion about the nature of the order that was made. The order was a final order that disposed of the issue of the limitations defence. The appeal was properly brought in the Court.

The appellants argued that SB knew, as of May 2017, that 9472 had loaned a substantial sum of money to JBGC and that most of these monies had not been accounted for by the trustee in bankruptcy. The appellants argued that this knowledge should have been attributed to 9472 in May 2017 when SB, as a creditor of 9471, first asserted ownership of the shares in 9472 that 9471 held.

The central issue is when SB achieved control over 9472. Under s. 65(2), SB was required to give notice of the proposal to accept the shares in satisfaction of the debt owed by 9471 to the persons mentioned in s. 63(4) (a) to (d), including the debtor, the owner of the collateral, and every person who has a security interest in the collateral. Only once that notice had been given, and no effective objection was made, was SB deemed by the PPSA to have irrevocably elected to accept the collateral in satisfaction of the debt and entitled to transfer title of the shares in 9472 from 9471 to herself. The issue confronting the motion judge was a debtor’s insistence that notice occurred over the objections of the creditor and despite the absence of foreclosure until years later.

The motion judge made findings as to the nature of the correspondence between SB’s solicitor and Zaza’s solicitor. Specifically, the motion judge found that the email communications did not amount to more than an assertion of entitlement and that they did not constitute a notice of foreclosure under the PPSA. Instead, the motion judge found that notice was provided on December 21, 2020, when SB’s lawyer wrote to the trustee in accordance with s. 65(2) of the PPSA. These were both findings of mixed fact and law, and the appellants did not identify a palpable and overriding error in the finding that the email correspondence was not notice or that the requisite notice occurred on December 21, 2020. There was no basis to interfere with the finding that SB’s knowledge could only be attributable to 9472 after foreclosure on January 6, 2021.

Prior to the inspector’s report, SB was unaware of the facts that would make the distributions wrongful. Her November 2017 affidavit in support of the appointment of an inspector demonstrated that she suspected and feared that Z had made fraudulent distributions, but the affidavit disclosed that she was relying on rumour and was unaware of the facts that would support this suspicion. The motion judge made no reviewable error in finding that the limitation period did not begin to run until after the inspector’s report was issued.

Drag v. Mehta, 2024 ONCA 334

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

M.Z. Tufman, for the appellant

G.M. Caplan and A. Simovonian, for the respondent

facts:

The parties entered into an Agreement of Purchase and Sale of land dated December 2, 2020 (the “APS”). The APS was conditional on R.M. being satisfied with the result of a home inspection by a qualified home inspector by giving notice in writing to B.D. that the condition was either (i) fulfilled or (ii) waived. Any such notice had to be delivered within five banking days of the acceptance of the APS.

The APS contained provisions about giving notice to B.D. It appointed the listing broker as B.D.’s agent for receiving notice. It provided that any notice had to be received personally or be hand delivered to an address for service provided in the APS (which was the property to be sold under the APS). Alternatively, if a facsimile number or email address was provided in the APS, then notice could be delivered by fax transmission or email to that number or address, respectively.

However, after R.M. received a home inspection report on December 8, 2020, he initially chose to seek an abatement of the purchase price on the basis of which he would agree to delete the home inspection condition and render the APS firm. At 6:59 p.m. on December 9, the purchase price was reduced by $40,000, the home inspection condition was deleted and the APS was firm and binding. The amending agreement was irrevocable until December 10 at 12:30 p.m.

There were disputes about the timing and manner of delivering the waiver and the trial judge rejected R.M,’s arguments about the acceptance date and that he served the notice of waiver by 11:59 p.m. on December 9th. However, the trial judge held that B.D.’s contractual duty of good faith was breached by his listing broker’s misrepresentations as to “an accepted amending agreement and B.D.’s unavailability to execute it until the next morning”. The misrepresentations implied “that the time period for the waiving the home inspection condition would, at least, be deferred an additional day.” The trial judge concluded that “B.D. on that basis alone should not be able to declare the APS null and void” as at 11:59 p.m. on December 9, and he held that “[t]he waiver, without a doubt, was delivered the next day [December 10] by email”.

The trial judge granted specific performance of the APS, without any abatement.

issues:

Did the trial judge err in failing to find that the APS came to an end on December 9, by virtue of the provisions of its home inspection condition?

holding:

Appeal dismissed.

reasoning:

No.

The trial judge was entitled to find the requisite degree of reliance on, and detriment arising from, the listing agent’s misrepresentations in the fact that they “delayed and compromised delivery of the waiver of the home inspection condition”.

On the trial judge’s findings, R.M. relied on the assurances that the listing agent provided to the buyer’s agent. R.M. became suspicious well into the evening of December 9, given that the listing agent did not give a written confirmation (while saying his word could be relied on).

The normal remedy for breach of the duty of honest performance is damages. However, this was not a damages case, as the parties had agreed that if the APS did not become null and void on December 9, specific performance was appropriate. The Court saw no error in the trial judge’s holding that, in light of the misrepresentations by the listing agent, B.D. was not entitled to insist on the strict timing in the APS to declare the APS became null and void at 11:59 p.m. on December 9.

Yadeta v. Peel (Municipality) Police Service Board, 2024 ONCA 341

[Rouleau, Lauwers and Monahan JJ.A.]

Counsel:

B.Y., acting in person

G. Ferguson, for the respondent The Regional Municipality of Peel Police Service Board

M. Saad, for the respondents His Majesty the King in Right of Ontario, The Attorney General of Ontario and Maplehurst Correctional Complex

facts:

The appellant faced criminal charges, including benefiting from sexual services provided by a minor and making child pornography. The appellant initiated a civil claim against various parties, alleging malicious prosecution, bad faith, and negligence. Additionally, he claimed to have been assaulted by another inmate while detained.

issues:

Did the motion judge err in refusing to grant leave under s. 17 of the Crown Liability and Proceedings Act to proceed with the claim and in dismissing his claim?

holding:

Appeal dismissed.

reasoning:

No.

The motion judge provided a comprehensive and well reasoned analysis in support of his conclusions. He correctly canvassed the statutory requirements to grant leave under s. 17 of the Crown Liability and Proceedings Act and explained how the appellant’s claims failed to meet these requirements. The appellant’s assertions of malicious prosecution, misfeasance in public office, and bad faith were deemed unsupported by evidence or material facts. The motion judge’s conclusion that the claim does not disclose a cause of action was well supported and consistent with the applicable legal principles.

There was no basis to interfere with the motion judge’s discretionary decision that leave to amend the claim should not be granted. The appellant had several opportunities to amend his claim and provide further material facts in support of his allegations. There was no basis for anticipating that further amendments could cure the fatal defects in the claim.

Jones v. Quinn, 2024 ONCA 315

[Miller, Paciocco and Coroza JJ.A.]

Counsel:

E. Savas, for the appellant

J. A. Schmidt, for the respondents

facts:

In 2017, the respondent LG transferred a 100-acre property that consists of farmland and residential land (the “Property”) to the appellant EQ, as a temporary financing relief for her financial difficulties. This transfer was conducted pursuant to an agreement of private purchase and sale (the “APPS”). The APPS included a Buyback Provision (“BBP”), which provided that within eight years of the date of purchase, LJ may purchase the property back from EQ for an amount based on the specified formula provided in the provision.

Despite initial cooperation between the parties with regards to financing, maintaining, and improving the Property in 2017 and 2018, their relationship deteriorated amidst financial difficulties. Throughout 2020 and 2021, the respondents made attempts to initiate a buyback process. On March 24, 2021, LG delivered to HF an unconditional offer to purchase the Property for $384,000 in the form of an Agreement of Purchase (“APS”) dated March 23, 2021, with a proposed closing date of May 31, 2021. The offer was irrevocably open for acceptance until March 26, 2021. On March 26, HF acknowledged receipt, but did not sign the APS.

Three applications were commenced by the parties and the respondents prevailed on all three. The application judge found that the appellant breached the BBP of the APPS and, in the alternative, that the respondents established a constructive trust over the Property. The application judge ordered that the appellant permit LJ or an authorized third party to repurchase the Property in accordance with the BBP and that the parties take immediate steps to close the transaction. The appellant EQ sought to overturn the application judge’s orders.

issues:

Is the appellant precluded from raising the option issue for the first time on appeal?
Did the application judge err in failing to interpret the BBP as an option?
If so, did the respondents breach the contract arising from their execution of the option?
Did the application judge err in ordering the appellant to sell the Property to the respondents in accordance with the terms of the second APS, and in granting a mandatory injunction for the same?
Did the application judge err in granting unpleaded, excessively vague relief in the form of an order that “any items that have been removed from the property, such as vehicles” be returned to their “rightful owner”?
Did the application judge err by granting excessive costs?

holding:

Appeal allowed, in part.

reasoning:

Appellants are typically not permitted to raise legal issues for the first time on appeal: Guindon at para 22. However, the appellant raised the issue of option contracts before the application judge and was not raising the issue for the first time on appeal.

The Court agreed with the respondents that the appellant had not expressly set out the law of options before the application judge in his factum or oral submissions. Nor had the appellant explicitly made submissions on why the BBP qualified as an option. However, the appellant brought to the application judge’s attention cases that engaged deeply with the law of options. The application judge exhaustively canvassed all the cases that were placed before her in her comprehensive reasons. In the Court’s view, the appellant made the law of options a live issue before the application judge, albeit in a less developed way than before the Court.

Yes.

The proper interpretation of the BBP was of central importance to the appeal. It was also of central importance in the argument before the application judge although, as noted above, the appellant had not explicitly argued the BBP was an option. While the Court found that the appellant was not precluded from raising this argument on appeal, in fairness to the application judge, the issue of whether this provision was an option was not directly pursued before her. Nevertheless, it was an extricable error of law for her to not consider whether the BBP was an option.

An option is generally understood in Canadian contract law to be an irrevocable offer, backed by consideration: Mitsui & Co. (Canada) Ltd. at para 27. The party making the offer is the optionor. The person obtaining the offer is the optionee or option holder. The optionee can invoke the option, according to its specifications, at which point a new contract forms between the parties. The rights and obligations of the parties to this new, bilateral contract are determined by the terms of the option: Mitsui, at para. 28

In Mitsui, at para. 26, the Supreme Court noted that there are three “principal features” of an option: 1. Exclusivity and irrevocability of the offer to sell within the time period specified in the option; 2. Specification of how the contract of sale may be created by the option holder; and 3. Obligation of the parties to enter into a contract of sale if the option is exercised.

Regarding the second principled feature, the Court agreed that the words of the BBP, read literally in isolation, did not explain with any precision the process by which LG can exercise her right to repurchase the Property from the appellant. However, the context of the agreement allowed for inferences to be drawn about what the parties intended. It was clearly intended to provide a right to repurchase, which necessitated some means of exercising the right.

Given the nature of real estate transactions, which forms part of the surrounding circumstances against which the clause must be interpreted, the option to repurchase must have been exercisable through the provision of notice to that effect. Notice allows for the parties to work out the many necessary procedural formalities, such as the requirement that all parties be represented by counsel, and that the transactions be put in writing to comply with the Statute of Frauds, R.S.O. 1990, c. S.19. The correct interpretation of the BBP thus provided LG with the right to trigger the process of the repurchase of the Property via notice. This is how the application judge interpreted the provision. The second Mitsui feature was met. The Court concluded that the BBP reflected the three principal features of options from Mitsui, and therefore, was an option.

In Bhasin v. Hrynew, the Supreme Court acknowledged that “good faith contractual performance is a general organizing principle of the common law of contract” and “manifests itself in various more specific doctrines governing contractual performance:” at paras. 33, 63. The list of doctrines is not closed, but includes: “1) the duty of cooperation between the parties to achieve the objects of the contract; 2) the duty to exercise contractual discretion in good faith; 3) the duty not to evade contractual obligations in bad faith; and 4) the duty of honest performance:” 2161907 Alberta Ltd. at para. 44.

As the Court read the application judge’s reasons, she was undoubtedly concerned with the appellant’s failure to cooperate by taking reasonable steps to facilitate the sale of the Property to LG.

The Court noted that parties to an option contract are subject to the same good faith obligations as the parties to other contracts. In this case, even if the appellant were correct in his assertion that the BBP did not require the parties to enter into a formal agreement of purchase and sale confirming the purchase price and closing date, his failure to respond to the second APS by refusing to sign the agreement and provide the name of the lawyer representing him before the scheduled closing belied any argument that he was proceeding in good faith.

The application judge found that the respondents did everything that could have been expected of them in the circumstances and that the appellant’s agent, HF, acted in a highly obstructionist manner. He failed to cooperate with the respondents to achieve the objects of the contract and sought to evade his contractual duties. Given his actions, it was not reasonable to expect the respondents to make tender at 6:00 p.m. on May 31, 2021, and the Court agreed with the application judge’s conclusion that the appellant was not entitled to rescind the contract on the basis of the respondents’ failure to tender on time. The appellant was in breach because he failed to discharge his obligations under the contract in good faith.

The appellant characterized the application judge’s order as impermissibly fashioning an agreement for the parties. However, the Court understood the order as requiring the specific performance of a contract arising out of the exercise of the option, which the parties freely entered into. The parties agreed to a contract to sell a property, via the execution of an option. The appellant breached, and the application judge ordered them to follow through with their commitment and complete the conveyance of the Property.

The Court acknowledged that the application judge did not conduct a formal specific performance analysis in her reasons. The Court concluded that specific performance was an available remedy in this case, given that the Property was of unique significance to LG: see generally Erie Sand and Gravel Limited v. Tri-B Acres Inc, at para. 117.

Yes.

First, the appellant submitted that the application judge erred in making an order that the respondents did not ask for. The Court disagreed.

The injunction and its procedural history were put before the application judge and formed a significant part of her factual narrative. The application judge was thus aware that the appellant had possession of two vehicles taken from the Property, well after the court order authorizing that possession had expired. In such a circumstance, the Court noted there was no substantial unfairness in the application judge recognizing that Lavine J.’s order authorizing possession of the vehicles had expired and that the vehicles should be returned.

In any event, the appropriate remedy for a denial of procedural fairness in a first instance proceeding can be an opportunity to attack the substantive correctness of the impugned order on appeal, rather than to quash or remand the order: R. v. Nahanee, at para. 57. The appellant had been given the opportunity to make substantive submissions challenging the correctness of the order to return vehicles and items to their rightful owner before the Court and indeed, he had done so. There was thus no basis to interfere with the order for lack of procedural fairness.

Second, the appellant contended that the respondents had asked for this relief in a separate motion at the Superior Court earlier in the proceedings, but that request for relief was dismissed as abandoned. The Court disagreed. The rule against collateral attacks applies to insulate court orders that dispose of a request for relief on a substantive basis. The rule is generally invoked when a party attempts to circumvent the effect of an order rendered against it by challenging its validity in the wrong forum: see generally Yan v. Hutchison, at para. 16. In some circumstances, it might constitute an abuse of process for a party to obtain relief that they had requested and then abandoned at an earlier stage of the proceeding. This had not happened in this case.

Finally, the appellant argued that the order was impermissibly vague, since it had not defined “items”, “vehicles”, or “rightful owner”: see Carey v. Laiken. The Court agreed with the appellant that courts have a duty to ensure that their orders “state clearly and unequivocally what should and should not be done”: PrescottRussell Services for Children and Adults v. N.G. (2006), at para. 27. To be enforceable, a court order must include all essential details as to the who, what, and when of its application, and must avoid overly broad language: Carey, at para. 33. In the abstract, an order to return “vehicles” to their “rightful owner” could be considered too vague to meet the Carey standard. However, in the context of this case, and in particular in light of the lengthy factual narrative in the application judge’s reasons, the Court noted that it is clear what was required of the appellant.

While an order for the appellant to take all reasonable steps to identify the rightful owner of the vehicles may be onerous, a court order is not impermissibly vague simply for being onerous. HF had chose to remove the vehicles from the Property of his own free choice. He was not required to do so. The Court stated he must bear the consequences of his actions.

The Court came to a different conclusion with regards to the order to return “items”. The word “items” was considered exceedingly broad. And unlike with vehicles, a careful review of the application judge’s reasons had not aided in narrowing down exactly what was being asked of the appellant. There was simply no guidance for the appellant to follow to determine what “items” he had control over and was expected to return. Nor was it clear how the appellant was to determine the “rightful owner” of these “items.” The Court noted that the respondents had not defended this aspect of the application judge’s order before the Court. Accordingly, the Court quashed the application judge’s order that the appellant return “items” to their “rightful owner”. The Court clarifed that the remaining order with regard to “vehicles” related to the green flatbed truck and Airstream trailer discussed in the application judge’s reasons, over which the appellant must take all reasonable steps to ascertain their rightful owner.

Leave to appeal a costs award is only granted in cases where it is obvious that there are strong grounds to believe that the judge erred in exercising their discretion: Brad-Jay Investments Limited at para 21. It was not obvious that there were strong grounds in this case. The application judge’s reasons tracked the correct and relevant principles of costs awards. The respondents’ bill of costs below could have been more detailed, but $50,000 was not an unreasonable sum for a proceeding of this complexity. And while the application judge had affirmatively rejected substantial indemnity in favour of partial indemnity costs, it was not a clear error for a judge to award partial indemnity costs that were similar in quantum to what a substantial indemnity award would have been. Partial indemnity fees are not defined in terms of an exact percentage of full indemnity fees under the Rules of Civil Procedure: see generally Wasserman, Arsenault Ltd. v. Sone (2002) at para. 5; Bondy-Rafael v. Potrebic, at para. 57.

Given the numerous factors that the court must consider in the exercise of its discretion in fixing costs, a highly deferential approach is required.

SHORT CIVIL DECISIONS

Sutherland v. Canadian Imperial Bank of Commerce, 2024 ONCA 338

[Roberts, Trotter and George JJ.A.]

Counsel:

SS, self-represented

R.Aisenberg, for the respondent

Keywords:

Contracts, Duty of Honest Performance, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Abuse of Process, Res Judicata

Halton Standard Condominium Corporation No. 550 v. Del Ridge (Appleby) Inc., 2024 ONCA 337

[van Rensburg, Roberts and Favreau JJ.A.]

Counsel:

P. Starkman, for the appellants

D.A. Schmuck and R. Taylor, for the respondent

Keywords: Civil Procedure, Striking Pleadings, Documentary Disclosure, Settlements, Disclosure, Rules of Civil Procedure, R. 30.10, Skymark Finance Corporation v. Ontario, 2023 ONCA 234

Flight (Re), 2024 ONCA 336

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

T. Vasdani, for the appellant

K.D. Reason, for the respondent

Keywords: Bankruptcy and Insolvency, Property of the Bankrupt, Choses in Action, Assignment, Flight (Heritage Painters & Services) v. LeBlanc, 2022 ONCA 831

Dreamfund Holdings Inc. v. Yusuf, 2024 ONCA 335

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

S. Olowolafe, for the appellants

B. Odetoyinbo and A. Appadoo, for the respondent

Mohammad v. Bakr, 2024 ONCA 347

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

AM, acting in person

S. Murtha and C. McCormack, for the respondent

M v. S, 2024 ONCA 330

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

Counsel:

E.D. Freedman, for the appellant

P. Danson, for the respondent M.F.S.

D. Delaney, for the respondents A.W., J.P. and M.J.de L.C.

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Enforcement, Adjournments, Toronto – Dominion Bank v. Hylton, 2010 ONCA 752

Vertical Horizons Contracting Inc. v. Markham (City), 2024 ONCA 359

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

L. Klug, for the appellant

V. Scalisi and R. Azimov, for the respondent

Keywords: Contracts, Construction

Alsous v. Shahin, 2024 ONCA 358

[Roberts, Trotter and George JJ.A.]

Counsel:

S. Garcea, for the appellant

K. Wise, for the respondent

Keywords: Family Law, Property

Kisten v. Kosewski, 2024 ONCA 346

[Brown, Paciocco and Nordheimer JJ.A.]

Counsel:

V. Pohani, for the appellant

No one appearing for the respondent

Keywords: Real Property, Trusts, Civil Procedure, Reasons for Decision

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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CIVIL DECISIONS

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John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email