Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Criminal Decisions | Ontario Review Board

Good afternoon.

I hope everyone had a Merry Christmas/Happy Hanukkah and are continuing to enjoy the holidays.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario released during the week of December 23. There were more than we had been expecting!

In Canadian Broadcasting Corporation v. Ferrier, the Court examined the open court principle in the context of police disciplinary hearings and determined that freedom of expression under the Charter was to be considered in determining whether such a hearing should be open to the public or held in camera. The matter was remitted back to the decision maker for reconsideration in accordance with the Court’s reasons.

In Morwald-Benevides v. Benevides, the Court discussed the principles governing the appointment of amicus curiae in private family law cases.

Congratulations to Blaneys’ own Sheldon Inkol for successfully responding to an appeal in a condominium law matter.

Other topics covered this week included the right of appeal in receivership matters under the BIA, punitive damages for defamation, malicious prosecution, administrative law in the mining law context, breach of contract and breach of confidence.

I wanted to thank all our readers for yet another great year. Our readership continues to climb, thanks, in no small measure, to the good word of all you who follow our blog.

As many of you may know, my partner, Lea Nebel and I have been chairing the last few years a CLE at the OBA of “Top Appeals” from the Court of Appeal over the past year. The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Two of the cases we will be featuring this year are Darmar Farms v Sygenta, which deals with the potential new tort of “premature commercialization” and pure economic loss in product liability context, and The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. We are also lining up our speakers for a third decision that will be featured, so please stay tuned.

Finally, I would like to wish everyone a very Happy New Year and all the best for 2020!

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Cable Assembly Systems Ltd. v. Barnes, 2019 ONCA 1013

Keywords: Torts, Defamation, Damages, Punitive Damages, Whiten v. Pilot Insurance Co., 2002 SCC 18, Pate Estate v. Galway-Cavendish (Township), 2013 ONCA 669, Filice v. Complex Services Inc., 2018 ONCA 625

Comfort Capital Inc. v Yeretsian, 2019 ONCA 1017

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Judgments, Enforcement, Appeals, Courts of Justice Act, RSO 1990, c C 43, s 6(1)(b), Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 193, 2403177 Ontario Inc v Bending Lake Iron Group Ltd., 2016 ONCA 225

Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012

Keywords: Contracts, Breach, Civil Procedure, Arbitration, Limitation Periods, Arbitration Act, 1991, S.O. 1991, c. 17, s 7(1), Courts of Justice Act, R.S.O. 1990, c. c.43, s. 106, Haas v. Gunasekaram, 2016 ONCA 744, Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34

Angus v. Port Hope (Municipality), 2019 ONCA 1015

Keywords: By-Law, Property, Malicious Prosecution, Misfeasance, Abuse of Public Office

CTT Pharmaceutical Holdings, Inc. v. Rapid Dose Therapeutics Inc., 2019 ONCA 1018

Keywords: Torts, Breach of Confidence, Lysko v. Braley, [2006] O.J. No. 1137 (ONCA), The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354

Morwald-Benevides v. Benevides, 2019 ONCA 1023

Keywords: Family Law, Civil Procedure, Amicus Curiae, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, R. v. Imona-Russel, 2019 ONCA 252, Zomparelli v. Conforti, 2018 ONSC 610, C.C.O. v. J.J.V., 2019 ABCA 292, R. v. G. (S.G.), [1997] 2 S.C.R. 716, R. v. Harrer, [1995] 3 S.C.R. 562, Dujardin v. Dujardin, 2018 ONCA 597, Gionet v. Pingue, 2018 ONCA 1040, Davids v. Davids (1999),125 O.A.C. 375

Treelawn Capital Corp. v. IAMGOLD Corporation, 2019 ONCA 1022

Keywords: Administrative Law, Mining Law, Contracts, Civil Procedure, Concurrent Jurisdiction, Mining Act, R.S.O. 1990, c. M.14, s. 181

Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025

Keywords: Administrative Law, Police Services, Civil Procedure, Open Court Principle, Freedom of Expression, Standard of Review, Police Services Act, RSO 1990, c P15, s 35(3), s 83(17), Canadian Charter of Rights and Freedoms, s 2(b), Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, R v Mentuck, 2001 SCC 76, Dunsmuir v New Brunswick, 2008 SCC 9, Langenfeld v Toronto Police Services Board, 2019 ONCA 716, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65

Short Civil Decisions

Swan v. Durham Condominium Corporation No. 45 (Appeal Book Endorsement), 2019 ONCA 1016

Keywords: Real Property, Condominiums, Compliance Orders, Civil Procedure, Res Judicata, Condominium Act, 1998, S.O. 1998, c. 19, ss. 85(1) and 134(1)

Criminal Decisions

R. v. W., 2019 ONCA 1014

Keywords: Criminal Law, Manslaughter, Sentencing, R. v. Devaney, 213 C.C.C. (3d) 264, R. v. Almarales, 2008 ONCA 692

R. v. B., 2019 ONCA 1024

Keywords: Criminal Law, Evidence, Criminal Code, R.S.C., 1985, c. C-46, ss. 676(1)(a), R. v. J.M.H., 2011 SCC 45, R. v. Rudge, 2011 ONCA 791, R. v. Graveline, 2006 SCC 16, R. v. Curry, 2014 ONCA 174, R. v. Knezevic, 2016 ONCA 914

Ontario Review Board Decisions

K (Re), 2019 ONCA 1021

Keywords: Ontario Review Board, Not Criminally Responsible, Dangerous Operation of a Motor Vehicle, Conditional Discharge


CIVIL DECISIONS

Cable Assembly Systems Ltd. v. Barnes, 2019 ONCA 1013

[Roberts, Zarnett and Jamal JJ.A.]

Counsel:

David A. Potts, for the appellants
Peter A. Downard and Dennis M. Touesnard, for the respondents

Keywords: Torts, Defamation, Damages, Punitive Damages, Whiten v. Pilot Insurance Co., 2002 SCC 18, Pate Estate v. Galway-Cavendish (Township), 2013 ONCA 669, Filice v. Complex Services Inc., 2018 ONCA 625

facts:

This is an appeal from the trial judge’s decision that the appellants pay the respondents general damages for defamation in the amount of $75,000, and punitive damages in the amount of $75,000.

From the mid-1990s to 2013, the respondent, Cable Assembly Systems Ltd. (“CAS”), performed the cable installation work that was required by the City of Brantford (the “City”). CAS was a Certified Systems Vendor (“CSV”) of Belden CDT. Inc. (“Belden”). As such, all of the cable used by CAS in completion of the City’s projects was manufactured and supplied by Belden.

Issues eventually arose between BM, the principal of CAS (“BM”), and BB, the Manager of Network Services for the City (“BB”). The dispute escalated after BM raised his concerns about BB with two of BB’s superiors and a City councillor. Aware of BM’s complaints, BB, in his capacity as Manager of Network Services for the City, made a number of disparaging statements about CAS to CE, the sales representative of Belden (“CE”).

Specifically, BB complained about CAS’ poor workmanship and showed CE photographs of CAS’ work, without disclosing that the issues depicted had been resolved by CAS for over more than a year. Furthermore, BB urged CE to certify another contactor as a CSV that BB was using instead of CAS. In this respect, BB incorrectly stated that CAS was the only Belden CSV in Brantford. BB also told CE that Brantford Hydro would not use CAS’ services, although CAS had never performed or sought to perform any work for Brantford Hydro. BB further indicated that his predecessor had experienced issues with CAS in the past relating to invoices.

The appellants denied making the latter two statements. The appellants admitted that BB had uttered the other statements, but they claimed that these statements were true or were made with an honest belief in their truth and were published on an occasion of qualified privilege.

At trial, the appellants’ defences were rejected. The trial judge found that BB had made all the statements that were attributed to him, that the statements were defamatory, and that BB acted in a malicious manner in response to BM’s complaints by attempting to misalign the reputation of the respondents with Belden. The trial judge further concluded that BB had abused his position as a public officer by making the defamatory statements and by refusing, for improper or ulterior motives, to hire the services of CAS thereafter.

In finding that CAS’ reputation had been placed in serious jeopardy by the defamatory statements made by BB, the trial judge determined that the damage to CAS’ reputation merited damages in the amount of $75,000. While the trial judge did not award damages for the tort of abuse of public office, he concluded that BB’s malicious actions and abuse of his position warranted an award of punitive damages in the amount of $75,000.

issues:

(1) Did the trial judge err in finding the appellants liable in defamation, malice and/or abuse of office?

(2) Did the trial judge err in awarding punitive damages?

holding:

Appeal allowed in part.

reasoning:

(1) No. The court found that the trial judge’s findings were amply supported by the record and the appellants’ admissions in their statement of defence. Accordingly, there was no basis for appellate intervention with respect to the trial judge’s findings of defamation, malice or abuse of position.

(2) Yes. The trial judge erred in awarding punitive damages, and the Court set aside this award. In making its determination, the Court noted that punitive damages, unlike compensatory damages, are not “at large”. Rather, punitive damages are exceptional for “malicious, oppressive and high-handed misconduct that offends the court’s sense of decency”: Whiten v. Pilot Insurance Co., 2002 SCC 18 at para 36. Such damages are thus only to be awarded where compensatory damages are inadequate to accomplish the objectives of retribution, deterrence and condemnation: Pate Estate v. Galway-Cavendish (Township), 2013 ONCA 669; Filice v. Complex Services Inc., 2018 ONCA 625. In the instant case, the Court found that the trial judge set out no basis for the appellants’ liability for punitive damages. In failing to do so, the trial judge committed an error in principle. The Court ultimately found that the $75,000 compensatory award of general damages for defamation was adequate in the circumstances. In making this finding, the Court noted that the circumstances involved utterances made during one meeting to an interlocutor sympathetic to the respondents, which had no actual effect on their reputation or business interests.

Since success was divided on appeal, the court made no order as to costs.


Comfort Capital Inc. v Yeretsian, 2019 ONCA 1017

[Zarnett J.A.]

Counsel:

Eric Golden, for the moving party
Doug Bourassa, for the responding parties Stanbarr Services Limited, Janodee Investments Ltd., Meadowshire Investments Ltd., Regard Investments Ltd., 1563503 Ontario Limited, Beaver Pond Investments Ltd., The Canada Trust Company, Rita Rosenberg and 527540 Ontario Limited
Margaret Sims and P. James Zibarras, for the responding party Canada Investment Corporation

Keywords: Bankruptcy and Insolvency, Receiverships, Civil Procedure, Judgments, Enforcement, Appeals, Courts of Justice Act, RSO 1990, c C 43, s 6(1)(b), Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 193, 2403177 Ontario Inc v Bending Lake Iron Group Ltd., 2016 ONCA 225

facts:

Rosen Goldberg Inc. is the court appointed receiver (the “receiver”) of the assets, undertaking, and property of the three corporations and two individuals named as respondents in the court below (the “debtors in receivership”).

Comfort Capital Inc. (“CIC”) held a mortgage on a property that was subject to the receivership, known as the Caldwell property. The receiver effected a sale of that property, and out of the amounts generated by the sale, the sum of $784,843 was available to be paid to CIC under its mortgage security.

Stanbarr Services Limited (the “Stanbarr Claimants”) and others are not creditors of the debtors in receivership. They do, however, claim to be creditors of CIC, and to have established that status as a result of findings made in a 2015 decision of Matheson J. in litigation between the Stanbarr Claimants and CIC (the “Scollard Action”). They claim that the amount of the debt owing to them by CIC exceeds the amount CIC is otherwise entitled to from the proceeds of the sale of the Caldwell property. CIC disagrees with that position.

On June 26, 2018, the Stanbarr Claimants brought a motion in the receivership proceedings for an order directing that any funds from the sale of the Caldwell property that would otherwise be payable to CIC instead be paid to the credit of the Scollard Action. CIC opposed the motion.

By orders made on August 3 and 31, 2018, a claims process was established in the receivership proceedings. The receiver delivered a report on August 7, 2019, that concluded that CIC was indebted to the Stanbarr Claimants as a result of determinations made in 2015 in the Scollard Action, in an amount greater than the amount CIC was entitled to from the sale of the Caldwell property. The receiver recommended that the funds that would otherwise have been payable to CIC from the sale of the Caldwell property be paid to the Stanbarr Claimants.

Penny J. concluded that the receiver was correct that the decision of Matheson J. in the Scollard Action was dispositive of the Stanbarr Claimants’ claim. He accepted the receiver’s recommendation and ordered that funds be paid to the Stanbarr Claimants.

CIC filed a Notice of Appeal dated September 23, 2019, asking that the order of Penny J. be set aside, and that the claim of the Stanbarr Claimants be dismissed or remitted for a new hearing. In its notice of appeal, CIC claimed it had an appeal as of right under s. 6(1)(b) of the Courts of Justice Act (the “CJA”) or under s 193(c) of the Bankruptcy and Insolvency Act (the “BIA”). Alternatively, it requested leave to appeal under s 193(e) of the BIA.

The receiver brought this motion for certain relief in connection with CIC’s appeal.

issues:

(1) Whether the CIC appeal is as of right or requires leave under s 193 of the BIA?

(2) If the CIC appeal requires leave under s 193 of the BIA, should leave be granted?

holding:

Motion dismissed.

reasoning:

(1) The Court held that the order is appealable as of right under s 193(c) of the BIA. Section 193(c) stipulates that an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases… (c) if the property involved in the appeal exceeds in value ten thousand dollars.

CIC argued that the sale produced $784,843 and if it was required to pay it to Stanbarr, it would cause them a loss of over $10,000 and bring them within s 193(c). The receiver submitted that Penny J.’s order was not an order that involved a loss for two reasons. First, the order is no different than an order that settles a priority dispute between creditors of an insolvent. Second, Penny J. accepted that it had already been determined in the Scollard Action that CIC was indebted to the Stanbarr Claimants. Therefore, by giving effect to that Penny J. was not causing any additional loss to CIC.

The Court cited 2403177 Ontario Inc. v Bending Lake Iron Group Ltd. as authority for three types of orders from which s 193(c) does not provide an appeal as of right: (i) orders that are procedural in nature including orders concerning the methods by which receivers or trustees realize an estate’s assets, (ii) orders that do not bring into play the value of the debtor’s property such as an order appointing a receiver to monetize assets, and (iii) orders that do not result in a gain or loss, because they do not contain “some element of a final determination of the economic interests of a claimant in the debtor” (para 61). The Court determined that the real issue in this case was whether it satisfied the third category.

The Court held that this case was not a traditional priority dispute between creditors of the debtors in receivership because Stanbarr was a third-party to the receivership. The true nature of the order was to cause payment to the Stanbarr Claimants of an amount otherwise payable to CIC, and thus constituted a loss to CIC, bringing it within s 193(c). That the order was made to give effect to what was determined to be a pre-existing obligation related to the correctness of the order and the strength of the grounds of appeal, but was not germane to whether there was an appeal as of right from the order.

(2)  In light of the conclusion in (i), the Court determined it was unnecessary to consider whether leave should be granted.


Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012

[MacPherson, Pepall and Lauwers JJ.A.]

Counsel:

Thomas M. Arnold, for the appellants
Michael Simaan, for the respondents

Keywords: Contracts, Breach, Civil Procedure, Arbitration, Limitation Periods, Arbitration Act, 1991, S.O. 1991, c. 17, s 7(1), Courts of Justice Act, R.S.O. 1990, c. c.43, s. 106, Haas v. Gunasekaram, 2016 ONCA 744, Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34

facts:

W.A., R.A., and the Estate of I.A., (the “A’s”), owned 121.4 acres of land in the Town of Halton Hills (the “A’s lands”), and Vector (Georgetown) Limited (“Vector”) owned 103.6 acres (the “Vector lands”). They and four other landowners retained the appellants, Glenn Schnarr & Associates Inc. (“GSAA”) and H.A. (“H.A.”), as consultants to assist in obtaining government approval so that their land could be developed for urban use. GSAA provides land-use planning services and H.A. is a lawyer who specializes in the practice of land development. On January 31, 2002, the landowners and the appellants entered into a Cost Sharing Agreement (the “Agreement”) relating to approximately 1,000 acres of land. Relying on Article 5.1 of the Agreement that provided for the payment of a bonus on the formal adoption of the applicable Regional Official Plan Amendment, and all appeal processes having been exhausted, the appellants commenced an action claiming damages for breach of contract and unjust enrichment against the respondents and other owners.

The action was commenced on November 5, 2015. The claim against LDGL, Eighth Line, and the A’s amounts to $327,600, and the claim against Vector and Shelson amounts to $297,600. The respondents defended the claim on the basis that they had provided 30 days’ written notice of termination of the Agreement in October 2004, and accordingly, their involvement with the Agreement terminated in November 2004. Pursuant to Article 11.1(e) of the Agreement, as no report was adopted by Regional Council within four years of termination of the Agreement, no bonus was payable, and all obligations under the Agreement ceased in November 2008. The respondents relied on the Limitations Act, 2002. They also pleaded that they derived no value or benefit from the Agreement.

issues:

(1) Did the motion judge err in failing to exercise his discretion under s. 106 of the Courts of Justice Act to stay the proceedings and direct the parties to arbitration as required by the terms of the Agreement?

(2) Did the motion judge err in law by failing to determine whether LDGL had an individual right to terminate the Agreement?

holding:

Appeal dismissed.

reasoning:

(1) No. Section 7(1) of the Arbitration Act, 1991, provides that if a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court shall, on the motion of another party to the arbitration agreement, stay the proceeding. Both parties agreed that s. 7(1) is inapplicable because it was the appellants who commenced court proceedings, and therefore it was not open to them to seek relief under s. 7(1).

(2) No. The motion judge did not provide any detail on the ability of one owner to terminate the Agreement independent of the other owners, but did conclude that “even if it was considered that [LDGL] improperly terminated the contract when it was not permitted to do so, the [appellants] should have advised of their position then, and commenced proceedings. The [appellants] took no steps to complain or to prevent termination of the contract, and allowed LDGL to proceed as if the agreement had been terminated.”


Angus v. Port Hope (Municipality), 2019 ONCA 1015

[Roberts, Zarnett and Jamal JJ.A.]

Counsel:

M. John Ewart, for the appellants
Kristin Muszynski and Kevin Cooke, for the respondent

Keywords: By-Law, Property, Malicious Prosecution, Misfeasance, Abuse of Public Office

facts:

The respondent municipality had passed a by-law requiring property owners to obtain a permit before dumping fill on their property. Before the by-law came into force, the appellants entered into an agreement for fill to be placed on property owned by the appellant, Mrs. A (the “Property”). The respondent objected to the continual fill without the permit. The appellant took the position that the by-law did not apply to the subject property, and continued to accept deliveries of fill on the property without submitting an application.

The respondent commenced a prosecution for breach of the by-law. The appellant sued in this action to challenge the enforceability of the by-law. The prosecution was permanently stayed on the basis that the appellants’ right to a trial within a reasonable period of time had been breached. The appellants then amended their action to include claims for malicious prosecution and misfeasance and abuse of public office. The respondent brought a motion for summary judgment to dismiss the claims against it. The appellants also moved for summary judgment on their claims. The motion judge granted summary judgment dismissing those parts of the appellants’ action not dealt with by prior decisions.

issues:

(1)  Did the motion judge err in dismissing the appellants’ claims for: (a) malicious prosecution; (b) misfeasance and abuse of public office; and (c) damages resulting from the fee provisions of the by-law being invalid?

(2) Did the motion judge err in not hearing the summary judgment motions together?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge correctly found that the appellants did not meet the third part (no reasonable and probable cause to initiate and continue the proceeding) of the four-part test for malicious prosecution. There was evidence on which she could find the respondent had a subjective belief that the by-law had been breached as the appellants had not obtained a permit. Similarly, the motion judge correctly articulated the test for misfeasance and abuse of public office. The motion judge found that there was no evidence that the by-law was enacted for other than proper purpose, and no evidence to support a finding the respondent acted in bad faith.

(2) No, the decision to defer the appellants’ motion and deal only with the respondent’s motion was within her discretion.


CTT Pharmaceutical Holdings, Inc. v. Rapid Dose Therapeutics Inc., 2019 ONCA 1018

[Lauwers, Paciocco and Fairburn JJ.A.]

Counsel:

Robert Trifts, for the appellant
Brendan Morrison and Derek Knoke, for the respondent

Keywords: Torts, Breach of Confidence, Lysko v. Braley, [2006] O.J. No. 1137 (ONCA), The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354

facts:

CTT and RDT entered into an agreement with the objective of jointly producing and marketing cannabis-infused rapid release oral dissolvable strips to take advantage of the impending legalization of cannabis in Canada. After CTT terminated that agreement, RDT contacted a professor (“Dr. A.”) and requested that he develop a formulation for a sublingual thin film drug delivery system on behalf of RDT. This ultimately led to a contract between RDT, Dr. A., and McMaster University to develop a thin film drug delivery technology called QuickStrip. Around the same time, RDT entered into an agreement HED and acquired the exclusive rights to distribute HED’s machines, which could be modified to produce sublingual thin film strips, to cannabis growers and licensed producers in Canada.

CTT sued RDT, alleging that it misused confidential information that CTT supplied to it in confidence to CTT’s detriment. The motion judge dismissed CTT’s claim, finding that CTT had failed to demonstrate that it had suffered any detriment as a result of RDT’s actions. CTT appeals from the motion judge’s determination.

issues:

(1) Did the motion judge misapprehend the evidence on the distribution agreement between RDT and HED?

(2) Did the motion judge err by failing to consider drawing an adverse inference from RDT’s failure to elicit evidence from Dr. A.?

(3) Did the motion judge err in fact and law when he determined that CTT had not suffered a detriment as a result of the potential misuse of the confidential information?

holding:

Appeal dismissed.

reasoning:

(1) No. CTT argued that the motion judge erred in fact when he concluded that the distributorship agreement never got off the ground. The Court found the motion judge’s decision to be merely summarizing RDT’s position. Clearly, the motion judge knew that the “distributorship agreement got off the ground”, in the sense that he acknowledged that it had been entered into. The Court understood RDT’s position – and the motion judge’s summary of that position – as being rooted in the fact that, as of the date of the motion, nothing had happened under that agreement.

(2) No. CTT argued that what was used in the development of QuickStrip, created through the partnership of RDT and Dr. A, was a contested fact. According to CTT, RDT should have elicited evidence from Dr. A to respond to the allegation that RDT had misused confidential information in developing QuickStrip. However, the Court found no error in the circumstances. CTT had not identified any confidential information that could have been misused by Dr. A., apart from the fact that HED could manufacture machines capable of producing oral strips with modifications. RDT’s evidence was that Dr. A.’s design was used to inform HED’s modifications, and not the other way around. In addition, there was no suggestion that Dr. A. or McMaster University used any confidential information when they created QuickStrip. Nor was there a claim for patent infringement.

(3) No. While the Court found error in the motion judge’s approach – specifically, his statement that detriment can only arise from financial loss – it nonetheless concluded that CTT suffered no detriment in this case. The Court agreed that the motion judge should have considered the argument that CTT lost a competitive advantage as part of whether there had been a “detriment”. However, granting summary judgment against CTT was still appropriate on the facts of the case because CTT was in no position to begin manufacturing its products, had no employees and no commercial activity whatsoever. There was therefore no detriment to CTT that was attributable to RDT’s actions.


Morwald-Benevides v. Benevides, 2019 ONCA 1023

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

Counsel:

Baaba Forson, for the appellant non-party, Her Majesty the Queen in right of Ontario
Sandra J. Meyrick, appearing as amicus curiae

Keywords: Family Law, Civil Procedure, Amicus Curiae, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 112, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, R. v. Imona-Russel, 2019 ONCA 252, Zomparelli v. Conforti, 2018 ONSC 610, C.C.O. v. J.J.V., 2019 ABCA 292, R. v. G. (S.G.), [1997] 2 S.C.R. 716, R. v. Harrer, [1995] 3 S.C.R. 562, Dujardin v. Dujardin, 2018 ONCA 597, Gionet v. Pingue, 2018 ONCA 1040, Davids v. Davids (1999),125 O.A.C. 375

facts:

The applicant mother brought an application for an order for custody of the three children of the marriage, an order prohibiting access, or in the alternative, providing for supervised access to the respondent father, and an order for spousal and child support.

After dismissing five counsel, including Andrew Thomson, the mother decided to represent herself at trial. She brought an unsuccessful motion at the outset of trial for an adjournment on medical grounds. The trial judge described the mother’s behaviour on the first day of trial as bordering on hysterical. After she collapsed in the courtroom, the trial judge decided to appoint Mr. Thomson as amicus to assist with the presentation of the mother’s case because he had previously acted for her and was familiar with the case.

The trial judge made a second amicus order appointing Bonnie Oldham as amicus for the respondent father, immediately after he permitted her to get off the record as his counsel for non-payment of fees. The trial judge dismissed the Crown’s motion to set aside the amicus curiae orders. The Crown appealed to the Superior Court of Justice. The appeal judge appointed the same two lawyers to act as amicus before him. He dismissed the Crown’s motion to set aside the amicus.

The present appeal was technically moot as the trial had been completed with both amicus participating.

issues:

(1) What are the principles governing the appointment of amicus curiae in private family law cases?

(2) Did the trial judge err in appointing amicus curiae in the present case?

holding:

Had the appeal not been moot, it would have been allowed.

reasoning:

(1) The Court set out the following non-exhaustive list of principles or factors that have emerged in the appointment of amicus curiae in private family law cases:

(i) The assistance of amicus must be essential to the adequate discharge of the judicial functions in the case. The stakes must be high enough to warrant amicus. This is a circumstantial determination within the trial judge’s discretion.

(ii) A party has the right to self-represent. However, the trial judge is responsible for ensuring that the trial progresses reasonably.

(iii) While amicus may assist in the presentation of evidence, amicus cannot control a party’s litigation strategy, and, because amicus does not represent a party, the party may not discharge amicus.

(iv) The authority to appoint amicus should be used sparingly and with caution in response to specific and exceptional circumstances. That one or both parties are self-represented is not, in itself, a sufficient reason to appoint amicus.

(v) The trial judge must consider whether he or she can personally provide sufficient guidance to an unrepresented party in the circumstances of the case to permit a fair and orderly trial without the assistance of amicus, even if the party’s case would not be presented quite as effectively.

(vi) It will sometimes, though very rarely, be necessary for amicus to assume duties approaching the role of counsel to a party in a family case. While the general role of amicus is to assist the court, the specific duties of amicus may vary. This is a delicate circumstantial question.

(vii) The order appointing amicus must be clear, detailed and precise in specifying the scope of amicus’s duties. The activities of amicus must be actively monitored by the trial judge.

(2) Yes. While the trial judge determined that the assistance of amicus was necessary in the circumstances of this case, he made the following errors in doing so.

First, the trial judge erred by appointing Mr. Thomson, which immediately injected an adversarial element that was inconsistent with the impartial role of amicus.

Second, the later appointment of a second amicus to represent the father was contrary to principle. A single amicus could have addressed the court’s questions about the complications stemming from the father’s residence in Bermuda.

Third, a single amicus appointment should almost always be able to satisfy the basic requirements of the court. In the family law context, it is hard to imagine a situation in which appointing two counsel as amicus to represent adversarial interests would be appropriate, rather than a single state-funded friend of the court.

Fourth, in more general terms, the fact that one party was represented did not justify the appointment of amicus for the other party. The Court rejected the trial judge’s comment that he “wanted amicus to play an adversarial role to properly test the evidence” of the two parties.

Fifth, any judge considering the appointment of amicus should give notice so that counsel for the Attorney General can make submissions on the advisability of the appointment in the circumstances of the case.

Finally, there was no litigation plan prepared by the trial judge or proposed by counsel to guide and govern the activities of amicus throughout the case. An amicus appointment order in a family law case should be as precise and detailed as possible in setting out the parameters of the amicus’s role; it should not be as open-ended in its expression or in its operation as the orders in this case.


Treelawn Capital Corp. v. IAMGOLD Corporation, 2019 ONCA 1022

[Roberts, Zarnett and Jamal JJ.A.]

Counsel:

Ian P. Katchin and Martin R. Kaplan, for the appellants
Neal J. Smitheman, Vaso Maric and Harry Skinner, for the respondent

Keywords: Administrative Law, Mining Law, Contracts, Civil Procedure, Concurrent Jurisdiction, Mining Act, R.S.O. 1990, c. M.14, s. 181

facts:

The respondent commenced a Tribunal proceeding pursuant to s. 181(2) of the Mining Act in order to require the appellants to pay their share of expenditures relating to the development of land and mining claims in which the appellants and respondent are co-owners.

The appellants responded by applying to a judge to transfer that proceeding to the Superior Court pursuant to s. 107 of the Mining Act. In essence, the appellants argued that an alleged oral agreement absolved them of any obligation to contribute to the expenses claimed by the respondent pursuant to s. 181(2). In this regard, the appellants asserted that the court was required to first adjudicate the existence and effect of the alleged oral agreement, as a ruling in their favour would deprive the Tribunal of jurisdiction over the application for the unpaid expenses.

issues:

(1) Did the application judge err in exercising her discretion pursuant to s. 107 of the Mining Act by refusing to transfer the proceeding to the Superior Court?

holding:

Appeal dismissed.

reasoning:

(1) No. The court found no error in the application judge’s decision. The application judge was entitled to find that, having regard to all the circumstances, it would not be appropriate to transfer the Tribunal proceeding to the Superior Court. These circumstances included the application judge’s finding that: (i) the matters at issue fell squarely within the Tribunal’s expertise; (ii) s. 181(2) of the Mining Act expressly addresses how co-owners of land or mining rights are to address rents or expenditures by applying to the Tribunal for a co-owner’s proportionate contribution to those expenditures; (iii) s. 181(4) of the Mining Act provided the appellants with a procedure for raising before the Tribunal their argument that the alleged oral agreement eliminates any obligation to contribute to the expenses claimed pursuant to s. 181(2); and (iv) the Tribunal can address any matters that may arise, including jurisdictional issues, by deploying its expertise in interpreting its home statute.

In making its determination, the court noted that it disagreed with the appellants’ characterization of the alleged oral agreement as involving a matter of property and civil rights, which should thus be transferred to the Superior Court, rather than as involving a matter concerning a right arising under the Mining Act. In this respect, the court held that the Tribunal proceeding involved the exercise of a statutory claim granted under the Mining Act, which the Tribunal had jurisdiction to adjudicate. Moreover, the court found that the appellants described the alleged oral agreement as governing the obligations of the parties “with respect to all mining activities and development”, which evidenced the strong connection that the agreement had with mining. Consequently, the court held that even though the Superior Court had concurrent jurisdiction in respect of the contract claim, the matters at issue fell squarely within the Tribunal’s specialized expertise.


Canadian Broadcasting Corporation v Ferrier, 2019 ONCA 1025

[Strathy CJO, Doherty, and Sharpe JJ.A.]

Counsel:

Ryder L. Gilliland and Agatha Wong, for the appellant Canadian Broadcasting Corporation
Julian N. Falconer and Mary (Molly) Churchill, for the appellants, the First Nation Public Complainants
Joanne E. Mulcahy, for the Respondent Officers
Holly Walbourne, for the respondent the Chief of Police of the Thunder Bay Police Service
Jean C.H. Iu and Pamela Stephenson Welch, for the respondent the Independent Police Review Director
David Migicovsky, for the respondent LF, QC, exercising powers and duties of the Thunder Bay Police Services Board
Daniel Guttman, for the intervener the Attorney General (Ontario)

Keywords: Administrative Law, Police Services, Civil Procedure, Open Court Principle, Freedom of Expression, Standard of Review, Police Services Act, RSO 1990, c P15, s 35(3), s 83(17), Canadian Charter of Rights and Freedoms, s 2(b), Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, R v Mentuck, 2001 SCC 76, Dunsmuir v New Brunswick, 2008 SCC 9, Langenfeld v Toronto Police Services Board, 2019 ONCA 716, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65

facts:

After the tragic death of an Indigenous man in Thunder Bay, it took longer than six months for the Ontario Independent Police Review Director (the “OIPRD”) to report that there were reasonable grounds to believe that the officers were guilty of misconduct related to the investigation. Accordingly, it was necessary to ask the Thunder Bay Police Services (“TBPS”) Board for an extension before a disciplinary hearing could be commenced.

Section 35(3) of the Police Services Act provides that subject to certain exceptions, police services board hearings are presumptively open to the public. The decision maker, a retired judge appointed to make the decision the TBPS Board would ordinarily make, entertained submissions and ordered that the hearing would be closed (in camera).

The CBC was granted an interim injunction to enjoin the decision maker from proceeding with the in camera hearing pending consideration of the CBC’s application to the Divisional Court for judicial review.

The Divisional Court identified the sole issue arising on the CBC’s application for judicial review as whether the decision maker erred by not applying the Dagenais/Mentuck test to whether the extension application should be heard in camera. The Dagenais/Mentuck test is:

Restrictions on the open court principle and freedom of the press in relation to judicial proceedings can only be ordered where the party seeking such a restriction establishes through convincing evidence that:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

The Divisional Court found that the applicable standard of review was reasonableness and that the decision was both reasonable and correct.

The Canadian Broadcasting Corporation (the “CBC”) and the Complainants appealed the order of the Divisional Court refusing to interfere with the decision, arguing that both the Divisional Court and the decision maker failed to pay adequate attention to the s. 2(b) Charter right to freedom of expression by failing to require an open hearing.

issues:

(1) What is the standard of review?

(2) Does the decision ordering a closed hearing satisfy the applicable standard of review?

(3) Should the Complainants’ fresh evidence be admitted?

(4) If the appeal is allowed, what is the appropriate remedy?

holding:

Appeal allowed.

reasoning:

(1) The standard of review is correctness. While the decision to hold a closed hearing would ordinarily attract the deferential “reasonableness” standard of review mandated by Dunsmuir v New Brunswick, the refusal or failure to consider an applicable Charter right will attract a correctness standard of review re: Vavilov at para 17:

[T]he presumption of reasonableness review will be rebutted…where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.

The Divisional Court failed to recognize that the attack on the decision focussed on the refusal to apply the Dagenais/Mentuck test when concluding that the extension hearing should be closed. The challenged decision was not a decision under s 83(17) as to whether to grant an extension, but rather a decision under s 35(4) as to whether to hold a closed hearing. The Court agreed with the appellants that that decision could only be made if the Charter rights to freedom of expression and freedom of the press were considered. The decision maker was wrong to conclude that the exercise of his discretion was governed solely by the terms of s 35(4) and to refuse to take those Charter rights into account.

(2) No. While the decision maker did not err when he found that the Dagenais/Mentuck test did not apply to the decision he had to make under s. 35(4) because the that test does not apply to this type of administrative hearing, the decision maker did err because the presumption of an open hearing under s 35(3) of the Police Services Act and the s 2(b) Charter right recognized in Langenfeld do apply. Langenfeld was decided after the decision maker released his ruling, so the Court did not hold him to that standard.

However, section 35(4) reflects three relevant statutory objectives that the decision maker incorrectly did not address. The first objective is congruent with s 2(b): meetings of police services boards are presumptively open to the public. The second and third relevant statutory objectives are the protection of “intimate financial or personal matters” and the public interest in a fair and impartial hearing. Both factors require a proportional response, appropriately balancing the severity of interfering with the Charter right with the achievement of the statutory objectives.

The Court held that consideration of the s 35(4) test in the light of s 2(b) and freedom of the press is a highly contextual exercise and framing an appropriate order will very much depend upon the circumstances of each case. The decision maker identified the factors favouring an in camera hearing. The Court suggested the factors he should consider as favouring an open hearing:

  • the extension hearing forms one small part of a much larger controversy;
  • the OIPRD investigative report has already been made public;
  • the TBPS Board and the decision maker structured the consideration of the request for a s. 83(17) extension as if it were a quasi-judicial decision instead of an administrative decision; and
  • the interest of transparency in relation to police discipline.

(3) The Court refused to admit the fresh evidence regarding racism between the TBPS and the Indigenous community as it was unnecessary for the resolution of the appeal.

(4) The Court remitted the matter to the decision maker for reconsideration in light of the Court’s reasons, specifically to conduct the proportionality exercise required under s 35(4) of the Police Services Act.


SHORT CIVIL DECISIONS

Swan v. Durham Condominium Corporation No. 45 (Appeal Book Endorsement), 2019 ONCA 1016

[Huscroft, Trotter and Zarnett JJ.A.]

Counsel:

Howard Wright, for the appellant
Sheldon Inkol, for the respondent

Keywords: Real Property, Condominiums, Compliance Orders, Civil Procedure, Res Judicata, Condominium Act, 1998, S.O. 1998, c. 19, ss. 85(1) and 134(1)


CRIMINAL DECISIONS

R. v. W., 2019 ONCA 1014

[Pardu, Roberts and Thorburn JJ.A.]

Counsel:

Delmar Doucette, for the appellant
Deborah Krick, for the respondent

Keywords: Criminal Law, Manslaughter, Sentencing, R. v. Devaney, 213 C.C.C. (3d) 264, R. v. Almarales, 2008 ONCA 692

R. v. B., 2019 ONCA 1024

[Feldman, Tulloch and Jamal JJ.A.]

Counsel:

Vallery Bayly, for the appellant
Gordon S. Campbell and William G. Stephenson, for the respondent

Keywords: Criminal Law, Evidence, Criminal Code, R.S.C., 1985, c. C-46, ss. 676(1)(a), R. v. J.M.H., 2011 SCC 45, R. v. Rudge, 2011 ONCA 791, R. v. Graveline, 2006 SCC 16, R. v. Curry, 2014 ONCA 174, R. v. Knezevic, 2016 ONCA 914


ONTARIO REVIEW BOARD DECISIONS

K (Re), 2019 ONCA 1021

[Doherty, van Rensburg and Hourigan JJ.A.]

Counsel:

Daniel R. Medd, for the appellant
Natalya Odorico, for the respondent, the Attorney General of Ontario
Michele Warner, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Not Criminally Responsible, Dangerous Operation of a Motor Vehicle, Conditional Discharge


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.

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Criminal Decisions| Ontario Review Board

Good afternoon,

Following are this week’s summaries of the civil decisions of the Court of Appeal for Ontario.

In Sosnowski v. MacEwen Petroleum Inc., the Court appears to have unconvincingly dialed back how far the “appropriate means” test can go to extend the limitation period. In this case, the employee waited until he was acquitted of theft (which took six years, including appeals) before suing for wrongful dismissal (he had been fired for cause because of the alleged theft). I would have thought that on the basis of Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, the limitation period would have been delayed until the acquittal. However, the Court did not see it that way, and distinguishedWinmillon the basis that the criminal charge of assault by the plaintiff against the police in that case was the other side of the same coin as the plaintiff’s civil claim against the police for battery. In addition, the Court felt that it was important that the police’s conduct was at issue in Winmill, while it was not in this case. With all due respect to the Court, I fail to see how the theft conviction was not the other side of the same coin to whether the plaintiff had been terminated for cause. If there is no theft, there is no cause. There also appears to be no principled basis to restrict the application of Winmillto situations where police conduct is in question. It is arguable that this decision and Winmillare in conflict, and that the Supreme Court ought to settle the debate of how far the “appropriate means” test should go.

Continue Reading COURT OF APPEAL SUMMARIES (DECEMBER 16 – DECEMBER 20, 2019)

Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Criminal Decisions | Ontario Review Board

Good afternoon.

Below are the summaries for this week’s civil decisions of the Court of Appeal for Ontario.

In Trezzi v Trezzi the court confirmed that a testator can bequeath not only his or her assets owned in their personal name, but also those they own indirectly through a corporation of which they are the sole shareholder. The effect of the Will in this case stripped the corporation of all of its assets, and effectively represented the intention on the part of the testator to wind-up the corporation. His estate trustees had the power to do that under ss 193(1) of the Ontario Business Corporations Act.

Continue Reading COURT OF APPEAL SUMMARIES (DECEMBER 9 – DECEMBER 13, 2019)