COURT OF APPEAL SUMMARIES (DECEMBER 5-DECEMBER 9, 2016)

Hello,

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

There were only a few substantive decisions this week. Topics covered included a family law case where the issue considered was a material change in circumstances to warrant modifying a custody order, an insurance coverage dispute involving the interpretation of replacement cost and building by-law coverage, and a partial summary judgment decision involving allegations of negligent misrepresentation made by certain lenders against a borrower’s auditors.

We always welcome your comments and feedback.

Have a nice weekend.

Lea Nebel

Blaney McMurtry LLP

lnebel@blaney.com

Tel: 416-593-3914

http://www.blaney.com/lawyers/lea-nebel

Table of Contents:

N.L. v. R.R.M., 2016 ONCA 915

Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman, 2016 ONCA 916

Carter v Intact Insurance Company, 2016 ONCA 917

Fatahi-Ghandehari v. Wilson, 2016 ONCA 921

Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922

For Civil Endorsements, click here

For Criminal Decisions, click here

Civil Decisions: 

N.L. v. R.R.M., 2016 ONCA 915

[Weiler, Blair and van Rensburg JJ.A.]

Counsel:

G. S. Joseph, E. H. Gamus and M. P. Melito, for the appellant

M. J. Polisuk, for the respondent N.L.

J. L. Mark and E. Chan, for the respondents D.M. and M.M.

S. C. Wilmot, for the respondent Toronto Police Services

Keywords: Family Law, Custody Order, Material Change

Facts:

The appellant father and respondent mother were married in 1996. They separated finally in January 2012. The parties submitted their parenting and some economic issues to a senior family law specialist for mediation and arbitration. The arbitrator awarded custody of the children to the father. The father was to take the boys to attend the Family Bridges Program, an educational and experiential program which aims to resolve issues between parents and alienated children. On February 17, 2015, Justice Goodman made an order on consent incorporating the terms of the arbitral award. The order also ordered the Toronto Police Services, and other police forces to “assist as required” to enforce the provisions of the order and specifically to “take all such action as is required to locate, apprehend and deliver the children to the Respondent”.

On February 17, 2015, D.M. repeatedly ran away. The father filed a missing person report with the Toronto and Durham police. D.M. called the police on February 20, 2015, saying he was not missing, did not wish to live with his father, and refused to give his contact information. On February 23, 2015, the Chief of Police filed a motion to remove the police enforcement clause from the order.

Over the following months, the father received conflicting information from the two police forces about the investigation. The Toronto Police received an additional call from D.M. on April 22, 2015 and he met with police officers in person on May 6, 2015. The police made a note saying they were concerned for his safety if they enforced the custody order and closed their missing person investigation.

The mother brought a motion to change the custody order by awarding custody to her or, alternatively, that there be no custody order.

The motions judge granted the motion due to a change of circumstances. At the time, M.M. was at university but resided with the mother when he was not in school. D.M., age 16, lived alone in an apartment and was completing high school.  The motions judge decided to make no custody order.

The appellant father appeals the motion judge’s decision and asks this court to reinstate the prior final custody order granting him exclusive custody of D.M. He also appeals a related change order relieving the Toronto Police Services Board from enforcing the provisions of the custody order. By way of cross-appeal, the younger son, D.M., seeks a declaration that he has withdrawn from parental control and is therefore no longer a child of the marriage for whom a custody order can be made.

Issues:

(1)        Did the motions judge err in finding a material change of circumstances?

(2)        Did the motions judge err in changing the custody order?

(3)        Should the children be ordered to attend the Family Bridges Program? Did the motions judge err in finding that the Family Bridges Program was a medical treatment under the Health Care Consent Act, 1996 that required the children’s consent?

(4)        Did the motions judge err in removing the police enforcement clause from the order?

(5)        Have the children withdrawn from parental control (raised on cross-appeal)?

Holding:

Appeal and cross-appeal are dismissed.

Reasoning:

(1)        No. The motions judge did not err in finding a material change of circumstances. In considering whether there had been a change in the condition, means, needs and circumstances of the child, the trial judge was entitled to look at the intervening circumstance, namely that the younger son ran away and went underground. What the father seeks to have us do is take a different view of the evidence that was before the trial judge. While resistance to the consent custody order was foreseeable, what was not foreseen was the extreme resistance by D.M. He put his health and safety at risk in opposing the custody order and the evidence indicated he would continue to do so. The fact that D.M. was now over 16 meant that he had a greater capacity to frustrate the consent custody order. The trial judge did not err in holding that there had been a material change of circumstances.

(2)        No. The motions judge did not err in changing the custody order. The father’s submissions are in essence the same submissions he made before the motions judge. The motions judge carefully considered the father’s submissions and gave cogent reasons for rejecting them, having regard to D.M.’s best interests. Further, the motions judge correctly referred to existing jurisprudence that indicates the wishes of the child and the best interests of the child are not necessarily synonymous, as well as the jurisprudence that older children will make their own residential choice. In the absence of any palpable and overriding error in the exercise of his discretion, which has not been demonstrated, the court cannot intervene in the change of the custody order.

(3)        No. The decision on the first two issues makes it unnecessary to consider the issue of whether D.M.’s forced participation in the Family Bridges Program amounted to treatment and required his consent under the Health Care Consent Act, 1996.

(4)        No. As the father’s request to reinstate the original custody order in his favour with respect to D.M. has been dismissed, his appeal of the motion judges’ decision removing the enforcement clause in the custody order at the behest of the Chief of Police’s must also fail.

(5)        Yes. In dismissing the father’s appeal with respect to D.M., above, this court affirmed the motions judge’s order that no person has custody or access rights over D.M. It follows that no person has custody or access rights over D.M. or M.M. and neither can be forced to attend or participate in the Family Bridges Program. Thus, this requested relief has already in effect been granted.

D.M. also seeks a declaration that he has “withdrawn from parental control and has all of the statutory and common law rights of an independent minor”. Para. 2 of the motions judge’s order is already a declaration; albeit, the declaration does not have the precise wording that D.M. seeks. However, D.M. has not shown that the motions judge erred in principle in exercising the inherent discretion of a Superior Court judge to make the declaratory order he did. Accordingly, the cross-appeal is dismissed.

Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman, 2016 ONCA 916

[Cronk, Blair and MacFarland JJ.A.]

Counsel:

L. Rothstein, M. Waddell and O. Soriano, for the appellant

Tim Farrell and Jordan Page, for the respondent

Keywords: Certification, Class Action, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), real and substantial connection, jurisdiction simpliciter, Club Resorts Ltd. v. Van Breda, preferability analysis, AIC Limited v. Fischer

Facts:

The appellant, Excalibur Special Opportunities LP (“Excalibur”) is a limited partnership operating as an investment fund based in Toronto.  The Respondent is an accounting firm with an office in Toronto.  Excalibur was one of 57 investors that lost money in a high-risk investment in Southern China Livestock International Inc. (“Southern China Livestock”). Excalibur was one of only two Canadian investors and the only from Ontario (the other was from British Columbia). 50 of the 57 investors were American. All told, 98% of the proposed class members were non-residents of Ontario.

Excalibur claims they relied on the Respondent’s audit opinion in deciding to invest in Southern China Livestock.  Several months after the investment was made, Southern China Livestock filed a report mandated under U.S. securities law that allegedly disclosed ineffective internal controls over financial reporting. Seven months later, its shares became worthless.

In October 2012, Excalibur, on behalf of the 57 investors, sought to certify a class action against the Respondent for negligence and negligent misrepresentation in relation to the Respondent’s audit report.

The motion judge denied Excalibur’s motion for certification on two bases. First, he held that the class definition criterion under s. 5(1)(b) of the Class Proceedings Act, 1992, S.O. 1992, c. 6, was not met because the proposed claim lacked a real and substantial connection to Ontario. While, Excalibur and the Respondent are based in Toronto, the remaining proposed plaintiffs are all non-residents of Ontario, the company in which they invested is located in the United States and the transactions were governed by American law. Second, the motion judge held that the preferable procedure criterion under s. 5(1)(d) was not met because joinder was a more appropriate mechanism for resolving the plaintiffs’ claims.

While the majority of the Divisional Court upheld the motion judge’s order, Sachs J. dissented. The majority of the Divisional Court described joinder as the “default” procedure and cautioned that: “[w]e should be careful to use class proceedings when they are needed, not just because they can be made to apply and appear convenient.”

Issue:

(1) Did the majority of the Divisional Court err in deferring to the motion judge’s determination that there was no real and substantial connection between Ontario and the subject matter of the dispute?

(2) Did the majority of the Divisional Court further err in deferring to the motion judge’s determination that joinder was the preferable procedure to advance the issues raised in the pleadings?

Holding:

Appeal allowed.

Reasoning:

The majority decision, per MacFarland J.A.

(1) The motion judge set out four factors that in his view governed whether or not to certify a national or global class:

(a) whether the Ontario court has jurisdiction simpliciter over the defendant;

(b) whether the Ontario court can assume jurisdiction over a non-resident class member, which largely depends on whether Ontario has a real and substantial connection with the subject matter of the action and on principles of order, fairness and comity between courts;

(c) whether it would be reasonable for the non-resident class members to expect that their rights would be determined by what to them would be a foreign court; and

(d) whether the non-resident plaintiffs can be accorded procedural fairness, including adequate notice and a meaningful opportunity to opt out.

The Court of Appeal held that the motion judge had erred in including factor (c) as an independent consideration in determining whether to take jurisdiction in a global class proceeding. He further erred in relying on the Court’s decision in Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321(“Currie”) for the proposition that he had to exercise “restraint” in applying the real and substantial connection test.

Currie was concerned with the enforcement of an American settlement agreement that purported to bind Canadian class members. The jurisdictional issue in that case involved the order and fairness implications of enforcing that judgment against the absent Canadian class members. Currie does not stand for the proposition that an Ontario court should approach the issue of taking jurisdiction in a restrained manner.

The test to determine whether to take jurisdiction over foreign class members begins with an inquiry into jurisdiction simpliciter, on the principles set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 (“Van Breda”). Three of the four presumptive connecting factors outlined in Van Breda were present on the facts of the case as pleaded: the action for negligence and negligent misrepresentation was against a defendant who resided in Ontario, carried on business in Ontario and signed the audit report, the subject of the dispute, in Toronto.

The motion judge incorrectly characterized the claim as against the private placement transaction in the U.S., instead of the Respondent’s preparation of the Auditor’s Report in Ontario. The majority of the Divisional Court concluded that it did not have to resolve the jurisdictional issue in light of its decision to uphold the motion judge’s preferable procedure analysis. However, the Court of Appeal held that the motion judge had made a clear error, which displaces the deference normally accorded to judges on motions for certification.

(2) In addition to finding that a global class was inappropriate, the motion judge concluded that a joinder of claims was preferable to a class action. While the motion judge claimed to rely upon the Supreme Court’s decision in AIC Limited v. Fischer and the five questions to be considered in the preferability analysis, he did not conduct the comparative analysis that case prescribed.

If the motion judge meant to suggest that a plaintiff must establish that a class proceeding is necessary to obtain access to justice, rather than preferable to other methods, he erred in doing so. Further, the Divisional Court majority erred in describing joinder as the “default” procedure against which the merits of a class proceeding should be assessed.

The motion judge’s error in his real and substantial connection analysis tainted his analysis of the preferable procedure. If the motion judge had conducted the access to justice analysis mandated by AIC Limited v. Fischer through a lens that accepted that Ontario had a real and substantial connection to the investors’ claims, he could not have concluded that joinder was a preferable mechanism.

(3) The Court of Appeal certified the common issues by adopting Sachs J.’s reasons in her dissent.

Although the motion judge refused to certify Excalibur’s class proceeding, he went on to consider its proposed common issues in the event of an appeal. He held that several of the proposed common issues were properly certifiable. The Divisional Court majority declined to deal with Excalibur’s objections to the motion judge’s treatment of the common issues given its ultimate decision to uphold the motion judge’s determinations on the global class and preferable procedure criteria. Sachs J. considered the common issues in light of her conclusion that

the motion judge had misconceived the nature of Excalibur’s action. She agreed with the motion judge’s reformulation of some of the common issues and restored or modified others.

The dissenting decision, per Blair J.A

(1) In Van Breda, “real and substantial connection” had a particular connotation. Where one or more of the four presumptive factors outlined by the Supreme Court of Canada in that case are established, a real and substantial connection between the jurisdiction and the subject matter of the proceeding – the hallmark of a court’s competence to assume jurisdiction over a case with a foreign element – is presumed to exist and the court acquires jurisdiction simpliciter. That is not the end of the matter, however. The presumptive factors may be rebutted, and, even if they are not, the court may still go on to consider whether, in spite of the fact that it has jurisdiction, it should take the next step and assume jurisdiction over the foreign element in the proceeding.

In the present case, there was never any dispute that the Ontario court has jurisdiction simpliciter over the proposed class action. The purpose of the Motion Judge’s analysis was to determine whether the Ontario court should, not whether it could assume jurisdiction over a global class, and what he was searching for was whether there was a sufficient connection between Ontario and the subject matter of the dispute for that purpose. The motion judge’s review of the evidence and his conclusion that Ontario had a connection but not a real and substantial connection to the action must be read with that in mind.

It was from this perspective that the motion judge viewed his task of determining whether to certify the proposed global class – a class more than 98% of which would be comprised of non-resident members. And it was from this perspective that the motion judge concluded it was appropriate to consider, in the course of performing that task, whether it would be reasonable

for the non-resident class member to expect that his or her rights would be determined in and by a foreign court.

The idea that a court should exercise restraint in assuming jurisdiction over a case with a foreign element is not new. Sharpe J.A. merely reflected this state of affairs when he said, in Currie at para. 10, that “embedded in the principles of order and fairness is also the notion of jurisdictional restraint”.

The notion of restraint is reinforced by the provisions in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 dealing with service of defendants outside of Ontario. Rule 17 permits such service without leave of the court in a defined list of circumstances but requires leave of the court in other circumstances. In either event, it permits the foreign party served the originating process to move for an order setting aside the service or staying the proceeding before delivering a defence.

The notion of restraint is further evident in common law courts’ longstanding power to decline to assume jurisdiction over a foreign party, even though they have the jurisdiction to do so, on the basis of the forum non conveniens doctrine.

The motion judge had not mischaracterized the subject matter of the proposed class proceeding. The dissenting justice in the Divisional Court chose to characterize that subject matter narrowly: as a simple claim in auditor’s negligence against an Ontario auditor. The motion judge approached it more broadly because he was attempting to resolve not the narrower issue of whether the court had jurisdiction but the wider issue of whether it should assume jurisdiction over a global class.

Absent error in law or palpable and overriding error of fact or of mixed fact and law, the motion judge was entitled to deference. There was, therefore, no basis to interfere with his determination that it was not appropriate to certify a global class in this proceeding, as the majority in the Divisional Court concluded.

(2) Given the dissenting opinion’s conclusion that the motion judge had not erred in rejecting the certification of a global class, the subsequent preferable procedure issue could not have been tainted by viewing it through the “wrong lens”.

The motion judge had correctly conducted the Fischer analysis, addressing the five questions to be answered when considering whether processes will achieve access to justice. Certification is not the automatic or default outcome of an application for certification of a class action. As the majority in the Divisional Court pointed out, “[t]here is no inherent right to proceed on a class basis”. Section 5(1) of the Class Proceedings Act, 1992, sets out the requirements for certification and the onus is on the moving party to show that those requirements, including that a class proceeding would be the preferable proceedings, have been met. The Motion Judge’s analysis was entitled to deference.

The dissenting decision agreed with the majority in holding that the Divisional Court had erred in stating that “[j]oinder is not simply an alternative, it is the default position in considering whether a class proceeding is or is not the preferable procedure”. However, the Motion Judge had not proceeded on that basis.

Carter v Intact Insurance Company, 2016 ONCA 917

[Laskin, Pepall and Brown JJ.A.]

Counsel:

K. P. Nearing and N. Rodriguez, for the appellants

A. J. Bedard and Jasmine T. Akbarali, for the respondent

Keywords: Insurance, Policy Interpretation, Contra Proferentem, Indemnity Principle,   Replacement Cost

Facts:

The appellants owned an income property consisting of a mix of one, two and three storey buildings, containing 15 residential units and 13 commercial units. A fire caused substantial damage to the appellants’ buildings, which were insured by the respondent, from whom the appellants purchased replacement cost and building by-law coverage. The insurance policy provided that “replacement includes repair, construction or reconstruction with new property of like kind and quality”.

After the fire, the appellants decided to demolish the entire site to build an eight and a half storey condominium. Intact refused to pay replacement cost  because the proposed condominium was not a replacement; it was not a “new property of like kind and quality”. For similar reasons, Intact also refused to pay for building code upgrades. Intact paid  only the actual cash value of the damaged property.

The appellants sued Intact for replacement cost and an amount for building code upgrades under their building by-law coverageand brought a Rule 21 motion to determine the coverage issues. They argued that they are entitled to replacement cost no matter what they built because “replacement”, as defined in the policy, did not require that any property be of “like kind and quality”. Alternatively, they argued that their proposed condominium was of “like kind and quality”.

The motion judge rejected these arguments, and interpreted the policy to mean that replacement cost is only available if the insured’s property is of like kind and quality. He found that the proposed condominium was not. The appellants were entitled only to the actual cash value of their damaged property.

The appellants appealed.

Issue:

(1) Did the motion judge err by holding that the proposed condominium was not a replacement entitling the appellants to replacement cost?

(2) Did the motion judge err by failing to hold that the appellants were entitled to an amount for building code upgrades?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  The Court outlined the principles surrounding the interpretation of insurance policies and noted that the primary goal of contract interpretation is to give effect to the intention of the parties.

If the policy provision in question is unambiguous the court gives effect to the parties’ intention by giving effect to the provision’s plain and ordinary meaning. In doing so, and as interpretive aids, the court should take into account the provisions of the policy as a whole, the surrounding circumstances and the commercial atmosphere which the insurance policy was contracted for, and the general purpose of insurance.

If the provision is ambiguous, the court applies the following rules: it should prefer an interpretation that is consistent with the reasonable expectations of the parties, as long as that interpretation can be supported by the text of the policy; it should avoid interpretation that would give rise to an unrealistic result that would not have been contemplated by the parties at the time the policy was contracted for; and it should strive for an interpretation that is consistent with similar provisions and other insurance policies.

If the rules for resolving ambiguity are inadequate, then the court should interpret the provision contra proferentem. In applying the rule of contra proferentem, courts should construe coverage provisions broadly and exclusion provisions narrowly.

The definition of “replacement” in the appellants’ policy is unambiguous and the motion judge gave effect to its plain and ordinary meaning. The appeal turned on the interpretation of the definitions of “replacement” and “replacement cost” in the policy. The motion judge concluded that to recover replacement cost, the construction must be effected with new property of like kind and quality to what was there before. The Court of Appeal agreed.

The Court noted that indemnity is a main objective of insurance and, to the extent possible, coverage provisions should be interpreted with that objective in mind. Replacement cost coverage does go beyond mere indemnification of an insured because it allows for a measure of betterment. However, allowing replacement cost only where the replacement is of like kind and quality to the damaged or destroyed property better reflects the indemnity principle.

(2) No. The appellants’ condominium is not of like height, floor area, style, or occupancy to their insured property. The appellants are therefore not entitled to any amount for building code upgrades for their condominium.

Fatahi-Ghandehari v. Wilson, 2016 ONCA 921

[Brown J.A. (In Chambers)]

Counsel:

P. Robson, for the moving party

No one appearing for the responding party

Keywords: Endorsement, Family Law, Interlocutory vs. Final Orders

Facts:

The husband moved to stay pending appeal the order of Price J. made November 3, 2016. The Order contained three components: (i) relief requiring the identification and preservation of assets pending further order of the court; (ii) the scheduling of the wife’s contempt motion against the husband for his alleged breach of several financial information disclosure orders; and (iii) an order concerning the wife’s examination of two non-parties in aid of her contempt motion.

The wife did not appear, but wrote the court submitting that the husband appealed to the wrong court and his appeal is out of time. In her view, the Order was interlocutory therefore the appeal lies with leave to the Divisional Court.

Issues:

Does the appeal raise serious questions for consideration?

Holding:

Motion dismissed.

Reasoning:

1) The husband submitted that the Order was final in nature because the motion judge made two “final” decisions in his reasoning: (1) the judge ignored the terms of the marriage contract, and (2) he ignored the effect of an earlier order that the husband was the owner of a number of exotic cars that he either conveyed or made available for use in some fashion to a non-party.

The Court did not accept these submissions, as they ignored the litigation history leading up to the making of the Order and the effect of the Order. The Order was clearly interlocutory as it involved nothing more than an adjournment of a scheduled hearing date.

The husband also appealed the part of the Order requiring non-parties to attend for examination. This part of the order simply reaffirmed an earlier order granting the wife leave to conduct the examinations.

The Court also found no serious issue for appeal in respect of the identification and preservation of property provisions of the Order. An order for the preservation of an asset is interlocutory in nature. The classification of an order as final or interlocutory does not turn on the nature of the reasons given for it. The character of an order is determined by its legal effect.

The husband submitted that the preservation provisions of the Order will interfere with his ability to carry on business and earn a livelihood but he did not file any evidence in support of this submission.

Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922

[Hoy A.C.J.O., Benotto and Huscroft JJ.A.]

Counsel:

T. J. Dunne, Q.C., J. E. Callaghan and B. Na, for the appellants, High River Limited Partnership and Canadian Imperial Bank of Commerce

R. C. Heintzman, M. D. Schafler and M. G. Evans, for the respondents, Deloitte & Touche LLP, Deloitte Touche Tohmatsu LLP and Deloitte Touch Tohmatsu f/k/a Deloitte Touche Tohmatsu International

Keywords: Contract Law, Summary Judgment, Fraud, Negligence, Duty of Care, Reckless Misrepresentation, Credit Agreement

Facts:

Canadian Imperial Bank of Commerce (“CIBC”) and High River Limited Partnership (“High River”) sued auditors Deloitte and Deloitte-Verein on their own behalf and on behalf of all the other lenders (the “Original Lenders”) who, collectively, advanced approximately US $1,000,000,000 to Philip Services Corp. (“Philips”), a publicly traded company, under a US $1,500,000,000 credit agreement dated as of August 11, 1997 (the “Credit Agreement”), and their successors and assigns (collectively, the “Lenders”). In 1998, an accounting fraud was discovered at Philip and as a result Philip’s financial statements were materially restated. Philip’s defaulted under its credit facility and collapsed financially. The Lenders’ action was certified as a class action and they seek damages for negligence and reckless or negligent misrepresentation.

Philip, by its receiver and manager, sued Deloitte for breach of contract and for professional negligence. The Lenders and Philip allege that Deloitte gave unqualified opinions in connection with its audits of Philip’s consolidated financial statements for the financial years ending December 31, 1995 and 1996. The Lenders plead that the Original Lenders relied on those statements in entering into the Credit Agreement and that they would not have entered into the Credit Agreement and advanced the funds that they did had the consolidated financial statements reflected Philip’s true financial position and results. Philip pleads that its directors and management “relied upon these audited financial statements in charting the course of the company and in particular its rapid expansion through a series of acquisitions.” Philip further pleads that if Deloitte had performed its audits in accordance with its contracts with Philip and in accordance with  applicable professional standards, Philip would have stopped the accounting fraud and would not have embarked upon the string of acquisitions that the misstated financial statements made possible.

At first instance, Deloitte moved for partial summary judgment to have CIBC’s negligent misrepresentation claim dismissed.  In brief, Deloitte’s position was that it did not have a duty of care to a CIBC-led syndicate of lenders and, therefore, the negligent misrepresentation claim should be dismissed.  CIBC argued that the duty of care misrepresentation issue is a factual issue that can only be properly and fairly determined at trial.

The motion judge granted the summary judgment motion. He decided that Deloitte did not owe the Lenders a duty of care and there is no genuine issue for trial regarding CIBC’s negligent misrepresentation claim against Deloitte and Deloitte-Verein.

Issue:

Did the motion judge err in concluding that there was no risk of duplicative or inconsistent findings at trial and that granting partial summary judgment was advisable in the context of the litigation as a whole?

Holding:

Appeal allowed.

Reasoning:

Yes.  In the circumstances, the court allowed the appeal and ordered that the Lenders’ claims in negligence against Deloitte and Deloitte-Verein proceed to trial with the other claims.

The motion judge rejected the Lenders’ argument that granting partial summary judgment was inadvisable in the context of the litigation as a whole and risked duplicative or inconsistent findings at trial.

The motion judge indicated that he had assessed the advisability of a partial judgment in the context of the litigation as a whole. He concluded, at para. 170, that “the duty of care issue is discrete from the issues that will be decided at trial and the forensic machinery of a trial will not provide a better appreciation of the duty of care issue than achieved on this summary judgment motion”.

The motion judge correctly states that the Lenders’ claim for reckless misrepresentation and Philip’s breach of contract claim do not involve establishing a duty of care. However, the Lenders’ claim for reckless misrepresentation and Philip’s claims arise out of the same factual matrix as the Lenders’ negligence claim. The facts found by the motion judge in relation to the Lenders’ negligence claim will likely be at issue in the trial of the Lenders’ claim for reckless misrepresentation and Philip’s claims. Therefore, there is a real risk of duplicative or inconsistent findings at trial. This error taints the motion judge’s conclusion that partial summary judgment was advisable in the context of the litigation as a whole.

The summary judgment motion was long and complex and did not result in any party being released from the proceedings. It did not eliminate nor is it expected to materially shorten the lengthy trial that was scheduled at the time the summary judgment motion was heard and remains scheduled to begin next fall. The evidence of third party directors and officers and other members of the Deloitte audit team will be available to the trial judge, possibly providing a more accurate factual matrix on which to determine whether Deloitte owed the Lenders a duty of care.

Civil Endorsements:

Abi-Mansour v. Ontario College of Teachers, 2016 ONCA 928

[Sharpe, Pepall and Hourigan JJ.A.]

Counsel:

P. Abi-Mansour, in person

C. Lalonde, for the responding party

Keywords: Endorsement, Interlocutory Motion, Appeal to Divisional Court, Frivolous and Vexatious Appeal

Beard Winter LLP v. Shekhdar, 2016 ONCA 927

[Simmons, Pepall and Huscroft JJ.A.]

Counsel:

K. Shekhdar, in person

R. Winterstein, for the responding party

Keywords: Endorsement,  Leave to Appeal, Divisional Court, Kakoutis v. Bank of Nova Scotia, 2016 ONCA 919

Kakoutis v. Bank of Nova Scotia, 2016 ONCA 919

[Sharpe, Pepall and Hourigan JJ.A.]

Counsel:

L. Kakoutis and Effie Kakoutis, in person

A. Visheau, for the respondent

Keywords: Endorsement, Frivolous, Vexatious and Abuse of Process

Criminal Decisions:

Conway (Re), 2016 ONCA 918

[Laskin, Gillese and Watt JJ.A]

Counsel:

Conway, acting in person

E. Dann, amicus curiae

J. E. Blackburn, for the respondent the Person in Charge of St. Joseph’s Healthcare Hamilton

M. Morley, for the respondent the Attorney General of Ontario

Keywords: Criminal Law, Ontario Review Board, Peremptory Adjournments, Hearsay, Conditional Discharge

R. v. Carlos, 2016 ONCA 920

[Feldman, Watt and Huscroft JJ.A.]

Counsel:

P. Calarco, for the appellant

S. Magotiaux, for the respondent

Keywords: Endorsement, Criminal Law, Possession of Child Pornography, Voir Dire, Right to Silence, R. v. Edgar, 2010 ONCA 529

Canada (Attorney General) v. Lalonde, 2016 ONCA 923

[Doherty, Blair and Epstein JJ.A.]

Counsel:

E. Kikuchi, for the appellant

B. A. Callender, for the respondent

Keywords: Criminal Law, Conspiracy to Traffic, Sentencing,  Accelerated Parole, Canadian Charter of Rights and Freedoms, s. 11

Nakra (Re), 2016 ONCA 925

[Feldman, Watt and Huscroft JJ.A.]

Counsel:

A. Szigeti, for the appellant

G. S. MacKenzie, for the Centre for Addiction and Mental Health

C. Harper, for the Attorney General of Ontario

Keywords: Endorsement, Criminal Law, Not Criminally Responsible by Reason of Mental Disorder, Ontario Review Board, Standard of Review, Reasonableness

R. v. Moussavi, 2016 ONCA 924

[MacPherson, Cronk and Watt JJ.A.]

Counsel:

M. Halfyard and B. Vandebeek, for the appellant

G. Roberts, for the respondent

Keywords: Criminal Law, Dangerous Operation of a Motor Vehicle, Criminal Code, s. 249(3), Highway Traffic Act, Sobriety Test Admissibility, Canadian Charter of Rights and Freedoms, ss. 8, 9, 10(a) and (b)

R. v. S.J.K., 2016 ONCA 926

[Sharpe, van Rensburg and Pardu JJ.A.]

Counsel:

J. M. Rosen and S. McDunnough, for the appellant

M. Rahman, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching, Credibility, Reliability of Evidence

Almeida (Re), 2016 ONCA 929

[Watt, van Rensburg and Huscroft JJ.A.]

Counsel:

S. A. Almeida, acting in person

A. Baiasu, for the Crown

B. Walker-Renshaw, for Ontario Shores Centre for Mental Health Sciences

H. L. Krongold, appearing as amicus curiae via teleconference

Keywords: Criminal Law, Not Criminally Responsible by Reason of Mental Disorder, Ontario Review Board, Motion to Set Aside, Adjournment Request

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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