COURT OF APPEAL SUMMARIES (SEPTEMBER 21-25, 2015)

Hello Everyone,

The Ontario Court of Appeal only released two substantive civil decisions this week, and many more endorsements and criminal law decisions.  Civil topics covered this week included professional discipline of regulated professions (pharmacists) and relief from forfeiture in the long-term disability insurance context.

We hope you find this service useful and continue to share it with friends and colleagues.  Your comments and feedback are always welcome.

Enjoy your weekend.

John Polyzogopoulos

Blaney McMurtry LLP

JPolyzogopoulos@blaney.com

Tel: 416.593.2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Tables of Contents

Civil Decisions

Hanif v Ontario College of Pharmacists, 2015 ONCA 640 (click on the case name to read the summary)

Keywords: Regulated Professions, Pharmacists, Professional Misconduct, Constitutional Law, Division of Powers, Constitution Act, 1867, ss. 91(27), Pith and Substance, Health Professions Procedural Code, Professional-Patient Relationship, Sexual Relationship, Mandatory Revocation of License to Practice, Whether Constitutional

Dube v. RBC Life Insurance Company, 2015 ONCA 641 (click on the case name to read the summary)

Keywords: Insurance Law, Long Term Disability Policy, Whether Claim Made in Time, Equitable Remedies, Relief from Forfeiture, Courts of Justice Act, s. 98

For a list of Short Endorsements, click here

For a list of Criminal Law decisions, click here

Civil Decisions

Hanif v Ontario College of Pharmacists, 2015 ONCA 640

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

Abramson and L. Kantor, for the appellant

Hunter, for the respondent Her Majesty the Queen in right of Ontario

Dantowitz, for the respondent Ontario College of Pharmacists

Keywords:  Regulated Professions, Pharmacists, Professional Misconduct, Constitutional Law, Division of Powers, Constitution Act, 1867, ss. 91(27), Pith and Substance, Health Professions Procedural Code, Professional-Patient Relationship, Sexual Relationship, Mandatory Revocation of License to Practice, Whether Constitutional

Facts: The appellant is a pharmacist. He was involved in a consensual sexual relationship with a patient. Sexual activity between a health professional and a patient constitutes sexual abuse under the Health Professions Procedural Code (“Code”). A finding of sexual abuse results in mandatory revocation of the health professional’s certificate of registration. The appellant challenged the constitutional validity of the mandatory revocation provisions of the Code. He claimed that the Code intruded into federal jurisdiction over the criminal law under s. 91(27) of the Constitution Act, 1867. The application judge dismissed the appellant’s application on the basis that the mandatory revocation provisions of the Code are in pith and substance the regulation of health care professionals and not criminal law. The appellant appeals that decision and argues that the effect of the mandatory revocation of a professional licence terminates a person’s livelihood, and carries a substantial stigma. This stigma makes the Code cross over the line from permissible regulation of a profession into the regulation of morality which intrudes into a core component of federal criminal law under s. 91(27) of the Constitution Act, 1867.

Issue:  

Was the application judge’s effects analysis of the Code too narrow?

Holding: Appeal dismissed.

Reasoning: 

No, the effects analysis was not too narrow for three reasons. First, the effect of the Code provisions is to protect the public, and this type of legislation speaks to the maintenance of the professional-patient relationship. Second, the Code provisions do not have the effect of criminalizing activities that fall outside the delivery of health services, or import notions of sexual morality on consenting adults. Rather, they require a health professional to make a simple choice: treat the patient or sever the professional-patient relationship and engage in a sexual relationship. Treating a patient while involved in a sexual relationship undermines the integrity of the professional-patient relationship. Third, all offences involve a degree of stigma if you break the law.

Dube v. RBC Life Insurance Company, 2015 ONCA 641

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

D. M. Kraft, for the appellant

R. Steiner, for the respondent

Keywords: Insurance Law, Long Term Disability Policy, Whether Claim Made in Time, Equitable Remedies, Relief from Forfeiture, Courts of Justice Act, s. 98

Facts: Respondent Dube was injured in a car accident and was unable to return to work. His employer had a group insurance policy with the Appellant RBC, which provided employees with long term disability benefits. Dube failed to give notice or proof of his claim for the benefits within the policy’s applicable time period. RBC thus denied his claim and Dube pursued an action. RBC sought summary judgment on the basis that Dube’s claim was out of time. The motion judge refused to dismiss the action and instead found that Dube was entitled to relief from the forfeiture of his claim under s.98 of the Courts of Justice Act. RBC appealed, contending that the motion judge erred in his determination.

Issues: Did the motion judge exercise his discretion unreasonably in applying the three-part test for relief from forfeiture under s.98?

Holding: Appeal dismissed.

Reasoning: No.  The central issue on the motion was whether Dube was entitled to relief from forfeiture, whereby a court may grant relief against penalties and forfeitures on such terms as to compensation or otherwise as are considered just. This remedy is equitable and discretionary and the test the court must consider has three components: (i) the conduct of the insured applicant, (ii) the gravity of the breach, (iii) the disparity between the value of the property forfeited and the damage caused by the breach.

RBC conceded that the motion judge stated the test for relief from forfeiture correctly but argued that he misapplied the second component of the test in that he failed to properly assess the gravity of the breach. While the motion judge misstated the length of the breach, the critical question was whether RBC was prejudiced by the length of the breach and the motion judge did not err in finding that the prejudice to RBC was minimal. Indeed, even if RBC incurred some prejudice because it could not conduct its own investigations and medical examinations at an early date, that prejudice was outweighed by the harm to Dube.

Short Endorsements

Keays v. Zipursky, 2015 ONCA 635

[Laskin, MacPherson and MacFarland JJ.A]

Counsel:

No one appearing for the appellant

J. Kerr, amicus curiae

J. Blackburn, for the respondent

Keywords:  Mental Health Law, Appeal Dismissed as Abandoned, Mental Health Act, Absent Without Leave (AWOL)

Musyoki v. Geertsema, 2015 ONCA 643

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

F. N. Musyoki, acting in person

T. M. Conway, for the respondents

Keywords: Real Estate, Easement, Agreement of Purchase and Sale, Misrepresentation, Summary judgment, Appeal Dismissed

Sterling Waterhouse Inc. v. LMC Endocrinology Centres (Toronto) Ltd., 2015 ONCA 645

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

J. Mullen, for the appellant

L. Klug, for the respondent

Keywords: Commercial Tenancies, Mitigation, Appeal Allowed

White v. White, 2015 ONCA 647

[Feldman, Simmons and Miller JJ.A.]

Counsel:

M. Tubie, for the appellant

L.C. Talbot, for Melville White and Karen White

Keywords: Family Law, Divorce, Marriage Terminated by Death, Rules of Civil Procedure, Rule 11.01, Divorce Act, ss. 12(1) and s. 14, Appeal Allowed

Olumide v. Ontario, 2015 ONCA 651

[Gillese, Tulloch and Roberts JJ.A.]

Counsel:

Ade Olumide, in person, Appellant

D. Polla, for the Respondent, Her Majesty the Queen in right of the Province of Ontario

J. Mather, for the Respondent, Metrolinx

Keywords:  Vexatious Litigants, Frivolous and Vexatious Claims, Abuse of Process, Motion Dismissed

King v. Ryerson University, 2015 ONCA 648

[Cronk, Hourigan and Benotto JJ.A.]

Counsel:

Justine King, acting in person

A. Richards, for the respondents

Keywords: Education Law, Breach of Contract, Negligence, Intentional Infliction of Mental Distress,  Educational Malpractice, Justiciability, No Reasonable Cause of Action, Motion to Strike Granted, Appeal Dismissed

Criminal Law Decisions

R. v. Robson, 2015 ONCA 634

[Doherty, Tulloch and Hushcroft JJ.A.]

Counsel:

R. Niman, for the appellant

L. Mathews, for the respondent

Keywords: Criminal Law, Entrapment, Leave to Appeal, Refused

R v. Mailhot, 2015 ONCA 637

[Doherty, Tulloch and Huscroft JJ.A.]

Counsel:

Matthew Mailhot, appearing in person

L. P. Strezos, as duty counsel

E. Siebenmorgen, for the respondent

Keywords:  Criminal Law, Opinion Evidence, Assault, Exculpatory Evidence, Appeal Dismissed

R. v. Carreira, 2015 ONCA 639

[Cronk, Epstein and Brown JJ.A.]

Counsel:

A. Marchetti, for the appellant

S. Young, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Death, Intoxication, Sentencing, Credit for Pre-sentence Custody, Guilty Plea, Leave to Appeal, Appeal Dismissed

R. v. Kusi, 2015 ONCA 638

[Cronk, Epstein and Brown JJ.A.]

Counsel:

J. Norris and M. Conway, for the appellant

K. Wilson, for the respondent

Keywords: Criminal Law, Importing Drugs, Controlled Drug and Substances Act, ss. 6(1), Sentencing, Acting as Principal, Appeal Dismissed

R. v. B.H., 2015 ONCA 642

[Cronk, Epstein and Brown JJ.A.]

Counsel:

R. Sheppard, for the appellant

K. Rawluk, for the respondent

Keywords: Criminal Law, Gross Indecency, Credibility, Inconsistent Verdicts, Appeal Dismissed

R. v. Shi, 2015 ONCA 646

[Feldman, MacPherson and Miller JJ.A.]

Counsel:

K. Rawluk, for the appellant

I. Smith, for the respondent

Keywords: Criminal Law, Use of Imitation Firearm to Commit Indictable Offence, Mandatory Minimum Sentencing, Appeal Allowed, Mitigating Factors, Fresh Evidence, Stay of Execution

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