COURT OF APPEAL SUMMARIES (JANUARY 23 – JANUARY 27, 2017)

Good Evening.

Apologies for the delay in posting this past week’s summaries. The Court of Appeal considered: the sufficiency of conflict screens when counsel moves to another firm and found that the standard procedures to be inadequate in that particular case because of how close the new lawyer to the firm worked with his former adversary (Chartis); summary judgment in the medical malpractice context (Hirchberg); the doctrine of abuse of process in an insurance arbitration context (Intact); and relief from forfeiture of a deposit (Invecom). Other topics included family law, Crown liability, MVA and adjournments.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416.593.2953

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

Table of Contents

Civil Decisions (click on case name to read summary):

1162740 Ontario Limited v. Pingue, 2017 ONCA 52

Keywords Civil Procedure, Appeals, Appeal Books, Contents, Evidence, Exhibits, Courts of Justice Act, s. 7(5), the Rules of Civil Procedure, r. 52.04

McGregor v. Pitawanakwat, 2017 ONCA 77

Keywords: Real Property, First Nations, Indian Act, Procedural and Natural Justice, Fairness of Hearing, Adjournments, Reasonable Apprehension of Bias,Costs, Substantial Indemnity

2260695 Ontario Inc v Invecom Associates Limited, 2017 ONCA 70

Keywords: Contracts, Relief From Forfeiture, Good Faith, Bhasin v Hrynew

Schwilgin v Szivy, 2017 ONCA 78

Keywords: Family Law, Appeals, Adjournments, Self-Represented Litigants

Brown v. Dalessandro, 2017 ONCA 80

Keywords: Endorsement, Torts, Negligence, MVA, Summary Judgment, Standard of Review, Palpable and Overriding Error, Costs

Intact Insurance Company v. Federated Insurance Company of Canada, 2017 ONCA 73

Keywords: Insurance Law, Policies, Cancellation, Statutory Accident Benefits, Arbitration, Evidence, Abuse of Process, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, Evidence Act, s. 22.1

Walters v. Ontario, 2017 ONCA 53

Keywords: Torts, Negligence, Crown Liability, Correctional Facilities, Duty of Care, Standard of Care, Policy Decisions, Justiciability, Evidence, Hearsay, Prior Inconsistent Statements, Standard of Review, Mixed Fact and Law, Palpable and Overriding Error

Cruz-Lee v. Lee, 2017 ONCA 61

Keywords: Endorsement, Family Law, Matrimonial Home, Evidence, Experts, Battered Wife Syndrome, Family Law Rules, Rule 20.01, Date of Separation, Standard of Review, Facts, Palpable and Overriding Error

Elaziz v Wahba, 2017 ONCA 58

Keywords: Endorsement, Family Law, Access, Variation

Routh Chovaz Insurance Brokers Inc. v. Aviva Insurance Company of Canada, 2017 ONCA 55

Keywords: Endorsement, Contracts, Insurance, Brokers, Summary Judgment

Ontario v. Chartis Insurance Company of Canada, 2017 ONCA 59

Keywords: Solicitor and Client, Conflicts of Interest, Disqualification, MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235

Hampton Securities Limited v. Tassone, 2017 ONCA 69

Keywords: Endorsement, Employment Law, Contracts of Employments, Interpretation, Standard of Review, Facts, Palpable and Overriding Error

Hirchberg v. Branson Drug Store, 2017 ONCA 62

Keywords: Endorsement, Torts, Negligence, Medical Malpractice, Standard of Care, Causation,  Expert Opinion Evidence, Summary Judgment

Criminal and Review Board Decisions (click here for decisions)

Civil Decisions:

1162740 Ontario Limited v. Pingue, 2017 ONCA 52

[Feldman, Lauwers and Miller JJA.]

Counsel:

R. Wozniak, for the appellants

H. Nesathurai and G. Perinot, for respondents

Keywords Civil Procedure, Appeals, Appeal Books, Contents, Evidence, Exhibits, Courts of Justice Act, s. 7(5), the Rules of Civil Procedure, r. 52.04

Facts:

This was a procedural appeal regarding the construction of a trial record. The respondents sued the appellants for misappropriation of funds generated by the operation of the apartment building. The trial judge gave judgment in favour of the respondents.

Towards the end of the case for the defence and of the trial, the appellants moved under rr. 53.03 and 53.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order: (1) abridging the time for service of the report of a forensic accounting expert, Charlotte Urquhart; (2) granting leave to admit her report; and (3) permitting her to give evidence at the trial. The appellants did not tender a copy of Ms. Urquhart’s report as part of the motion material.

The trial judge dismissed the motion on the basis that it was too late: “Prejudice to the plaintiffs is real.” She stated “Permitting the filing of the report and/or the calling of Ms. Urquhart would for all intents and purposes start a second trial.”

The primary ground of appeal raised by the appellants on the appeal was that the trial judge erred in refusing to grant them leave to call their witness at trial.  The appellants attempted to file an appeal book that contained Mr. Forsyth’s report, which had not been made an exhibit at trial in its entirety, and the proffered expert report of Ms. Urquhart. The respondents moved before a single judge of the Court of Appeal, sitting in chambers, to excise those materials. The chambers judge ordered: “The expert reports that were not admitted before the trial judge are to be removed from the appeal book and compendium. Counsel may bring a motion in writing to the panel to admit further evidence if so advised.”

The appellants then moved before a panel under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside the decision of the chambers judge.

Issues:

(1) Did the chamber judge err by excising the reports from the appeal record?

Holding:

Order of chambers judge set aside.

Reasoning:

(1) Yes. Unless the excised documents are before the panel on the appeal, it will be difficult, if not impossible, for the appellants to argue the merits of their main ground of appeal.

The goal of a trial judge in supervising the assembly of an evidentiary record at trial is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before her at any moment in the course of the trial. The Court emphasized the distinction between numbered exhibits, which are governed by r. 52.04 of the Rules of Civil Procedure, and lettered exhibits. The distinction is important because, subject to the trial judge’s discretion, the jury has access to the numbered exhibits, but not to the lettered exhibits.

In the present case, the trial judge did not mark Mr. Forsyth’s report for identification as a lettered exhibit and did not make the report an exhibit, because opposing counsel did not consent. The Court was unclear as to whether the trial judge had a complete copy of the report, or only schedules to it. By reviewing the examination-in-chief and the cross-examination, the Court concluded that the trial judge was referencing at least the schedules of both reports.

The Court stated that it should not have been necessary to pick through the pages of a transcript in order to determine precisely what the trial judge had before her in documentary form at any particular moment in time. That is why marking expert reports as numbered or as lettered exhibits for identification is the preferred practice.

On the motion to include Ms. Urquhart’s report, counsel had with him a copy of the report, which had been provided to opposing counsel. It was not tendered to the trial judge as part of the motion material, although  it ought to have been.  It was incumbent on the trial judge to request a copy of the proffered expert’s report to be marked as a lettered exhibit for identification, so that the Court of Appeal would have access to it in the event the trial judge’s ruling was challenged on appeal.

McGregor v. Pitawanakwat, 2017 ONCA 77

[Laskin, Feldman and Hourigan JJ.A.]

Counsel:

N. Marcus, for the appellant

E. Hovius, for the respondent

Keywords: Real Property, First Nations, Indian Act, Procedural and Natural Justice, Fairness of Hearing, Adjournments, Reasonable Apprehension of Bias, Costs, Substantial Indemnity

Facts:

The appellant, Mary Pitawanakwat, and the respondent, Robert McGregor, are sister and brother. Both are members of the Whitefish River First Nation. Their underlying dispute is over possession of a parcel of land – Lot 15 – on the Whitefish reserve. The parties’ parents owned Lot 15. In July 1988, they transferred possession of it to McGregor. A Certificate of Possession in his name was registered under the Indian Act, R.S.C., 1985, c. I-5.

In April 2010, Pitawanakwat moved into a house on Lot 15. She claims she is entitled to possession, because in 2009 her parents orally gifted the lot and the house to her, a gift they later confirmed by an addition to their will in February 2011. The parties’ father died in late 2011, and their mother died a few months later. After their deaths, Pitawanakwat continued to live on Lot 15. She claims to have made improvements to the property in the rough amount of $29,000. But she paid no occupation rent.

Then, in January 2014, McGregor brought an application to determine possession of Lot 15. He eventually also sought an order evicting Pitawanakwat from the property. After numerous adjournments, the application was heard in March 2015. Although Pitawanakwat had previously had a lawyer, she chose to represent herself at the hearing.

The application judge found for McGregor and ordered Pitawanakwat’s eviction and ordered substantial indemnity costs against Pitawanakwat of approximately $24,000.

Issues:

  1. Was Pitawanakwat denied a fair hearing because the application judge unreasonably refused an adjournment to permit her to retain a lawyer, lead further evidence, and give notice of a constitutional question concerning the impact of Anishinaabe custom on the property provisions of the Indian Act?
  2. Was Pitawanakwat denied a fair hearing because the application judge’s conduct of the hearing gave rise to a reasonable apprehension of bias?
  3. Was the application judge’s order for substantial indemnity costs excessive and unfair?

Holding: Appeal dismissed. Leave to appeal costs granted and costs appeal allowed.

Reasoning:

1. An application judge’s decision whether to grant or refuse an adjournment is discretionary and thus attracts a high degree of deference from this court. In exercising this discretion, an application judge should take into account the interest of the applicant, the interest of the respondent, and the interest of the administration of justice in the timely resolution of the dispute: Khimji v. Dhanani, 182 O.A.C. 142. The application judge in this case took these interests into account, and his refusal to grant an adjournment was a reasonable exercise of his discretion.

2.No. The threshold for showing bias is appropriately high. Courts presume judges will be impartial. Courts presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The standard is objective. The test the party alleging bias must meet is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial or application judge would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369

In assessing a claim alleging an appearance of bias, a reviewing court has to examine the judge’s conduct of the entire trial or hearing. Instances of alleged improper conduct must be considered cumulatively, but the odd inappropriate comment during the course of a long hearing will be unlikely to establish a reasonable apprehension of bias: S. (R.D.).

The application judge neither prejudged the case nor treated Pitawanakwat unfairly. On the contrary, he conducted a fair hearing, and he gave Pitawanakwat a full opportunity to present her case, including trying to assist her in her presentation.

The application judge gave Pitawanakwat an opportunity to put forward all of her arguments. She was not denied a fair hearing. The Court of Appeal did not give effect to her main ground of appeal.

3.Yes. Pitawanakwat does not have a right to appeal the costs award. She must obtain leave of the Court of Appeal to do so. The Court of Appeal rarely grants leave, because costs orders are discretionary, and the court does not lightly interfere with them. A party seeking leave to appeal a costs order must show that the judge exercised this discretion unreasonably. This is one of those rare cases in which leave should be granted and the application judge’s cost award should be set aside.

The application judge based his order of substantial indemnity costs on two factors: Pitawanakwat unreasonably delayed the proceedings against her; and her defence had no merit. Reprehensible conduct is a proper basis for an award of substantial indemnity costs. But Pitawanakwat’s conduct was not reprehensible, and the particulars relied on by the application judge do not support such a finding.

The Court of Appeal granted leave to appeal costs, set aside the application judge’s cost award and in its place substituted an award of partial indemnity costs for the application in the amount of $15,000, inclusive of disbursement

2260695 Ontario Inc v Invecom Associates Limited, 2017 ONCA 70

[Simmons, Brown and Roberts JJ.A.]

Counsel:

  1. Salsberg, for the appellant
  2. Sclisizzi, for the respondents

Keywords: Contracts, Relief From Forfeiture, Good Faith, Bhasin v Hrynew

Facts:

The appellant, Invecom, appealed the applications judge’s decision that it forfeited a $400,000 deposit placed under an agreement of purchase and sale made January 10, 2014 (the “Agreement”) with the respondent vendors to acquire three properties in Waterloo, Ontario.

Section 4.1 of the Agreement contained several conditions of closing in favour of Invecom. It set 5 pm on a certain date as the time by which Invecom could waive the conditions “by written notice to the Vendors”. Section 4.3 provided that if by the applicable times the purchaser had not given notice to the Vendors that conditions have not been satisfied, such conditions will be deemed to have been satisfied and waived.

An amendment to the Agreement extended the Condition Date for waiving the conditions to 5 pm on April 15, 2014. Around 2 pm on that date, Invecom sent the Vendors’ real estate agent an Amending and Extending Agreement that proposed to extend the Condition Date until April 30, 2014 (the “Draft Extension Agreement”). The agent promptly transmitted the document to the Vendors.

Towards midnight of that day, the agent informed Invecom that the Vendors would not give a
“straight extension”. Invecom took the position that if the Vendors would not agree to an extension, the deal was at an end. Invecom did not close the transaction.

The Vendors took the position they were entitled to retain the deposit, relying on a section of the Agreement which stated that if the Transaction is not completed as a result of the Purchaser’s default, the Deposit and all accrued interest thereon will be forfeited to the Vendors as liquidated damages and in full and complete satisfaction of any Claims that the Vendors may have against the Purchaser as a result of such default.

The Vendors applied for declarations that Invecom had breached the Agreement and that they were therefore entitled to retain the deposit. Invecom commenced its own application, seeking declarations that it lawfully terminated the Agreement and was entitled to are return of its deposit.

The application judge granted the Vendors’ application, declared Invecom was in default, and declared the deposit and all accrued interest forfeited to the Vendors. The application judge dismissed Invecom’s application.

Issue:

(1) Whether the application judge erred in concluding that the Draft Extension Agreement constituted a written notice under ss 4.1 and 4.3 of the Agreement.

(2) Whether the application judge erred in failing to find the Vendors breached their good faith obligations described in Bhasin v Hrynew, 2014 SCC 71. They argued such a breach arose from the Vendors’ failure to respond to the Draft Extension Agreement until after 5 pm on April 15, 2014.

Holding:

Appeal dismissed.

Reasoning:

(1) No. The application judge’s finding that the Draft Extension Agreement amounted to an offer to extend was fully supported by the evidence. There was no reversible error. Neither the Draft Extension Agreement nor its accompanying transmittal email contained any language suggesting Invecom intended the document to serve as written notice under ss 4.1 and 4.3. The Court ought not to intervene absent palpable and overriding error.

(2) No. The Agreement placed the onus on Invecom to act, as the time for waiving the conditions in its favour ran out. There was no error in the application judge’s conclusion that there was no lack of good faith and nothing dishonest in leaving it to the purchasers to look after their own interests when the terms of the agreement are known to all. These were sophisticated parties who entered into a sophisticated agreement with the assistance of counsel.

Schwilgin v Szivy, 2017 ONCA 78

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

Counsel:

L. Schwilgin, acting in person

L. A. Szivy, acting in person

Keywords: Family Law, Appeals, Adjournments, Self-Represented Litigants

Facts

The moving party, Schwilgin, a self-represented litigant, moved to review the decision of Brown J.A. of the Court of Appeal, dated November 24, 2015, dismissing his motion for an extension of time to file a Notice of Appeal from the May 20, 2014 order of Backhouse J. of the Superior Court of Justice in this matrimonial case.

The respondent, Szivy, also a self-represented litigant, opposed the motion.

The Court also considered an adjournment request by Schwilgin on the basis that while he allegedly obtained legal aid for the purposes of his proposed appeal and argument of the motion, he was unable to obtain counsel and was unable to defend himself due to illness and lack of funds.

Issue

  1. Whether Schwilgin’s adjournment request should be granted.
  2. Whether Schwilgin’s review motion should be allowed.

Holding

Adjournment request denied, review motion dismissed.

Reasoning

(1) No. Schwilgin provided no evidence in proper form justifying his adjournment request. The materials provided by him did not confirm he has been granted legal aid for argument of the motion or his proposed appeal. No acceptable explanation for Schwilgin’s delay in moving for review of Brown J.A.’s order, which was made 13 months ago, had been furnished. The Panel denied Schwilgin’s adjournment request.

(2) No. There was no basis for interference with Brown J.A.’s impugned order. Justice Brown considered and properly applied the governing legal principles for an extension of time, reviewed the evidentiary record on the motion as a whole, and reached a conclusion on that record that was readily and reasonably available to him. Justice Brown did not accept as reasonable Schwilgin’s explanation for the delay in seeking to appeal to the Court of Appeal. He was not persuaded that there was merit to the proposed appeal, and was satisfied that the justice of the case favoured dismissing the extension of time motion. The Court of Appeal agreed with Brown J.A.’s clear and detailed reasons for his holdings on each of these issues.

Brown v. Dalessandro, 2017 ONCA 80

[Doherty, Brown and Roberts JJ.A.]

Counsel:

C. Nicolis, for the appellant

M. Packer and Erika Webb, for the respondent

B. M. Hicks, for the defendant, Trillium Mutual Insurance Company

Keywords: Endorsement, Torts, Negligence, MVA, Summary Judgment, Standard of Review, Palpable and Overriding Error, Costs

Facts:

The appellant, Michelle Brown, appeals the summary judgment dismissing her motor vehicle action against the respondent, Antonio Dalessandro. The motion judge dismissed the summary judgment motion brought by the other defendants, Meter Mix Concrete Ltd. and Chris Hall, the alleged owner and driver of the cement truck.

The appellant drove her car into the respondent’s pickup truck at the intersection of Eleanor and Florence Streets in London, Ontario. The motion judge held the respondent was not speeding at the time and was unable to see the appellant’s vehicle because the cement truck was blocking his view. The appellant does not challenge those findings. Indeed, the appellant submits the material facts in this case are not in dispute.

Issue:

Did the motion judge err in failing to address whether the respondent “should have been mindful of the stopped vehicles to his left and the necessity of proceeding with caution”?

Holding:

Appeal dismissed.

Reasoning:

No. The appellant argued the motion judge failed to address and follow the decision of this court in Nash v. Sullivan (1974), 1 O.R. (2d) 133 (C.A.), a case she contends is almost identical to the present one.

The court did not accept this submission. Although the motion judge did not refer to the Nash decision in her analysis of the respondent’s liability, she expressly considered the principle discussed in it – i.e. depending upon the particular circumstances, a driver with the right-of-way may have an obligation to slow down and take extra care to look out for other drivers.

The appellant has not demonstrated that the motion judge made any palpable and overriding error in so finding. The appellant seeks leave to appeal the motion judge’s cost decision. The court granted leave, but dismissed her costs appeal. The appellant did not persuade the court that the motion judge made any error in principle in exercising her discretion to award costs.

Intact Insurance Company v. Federated Insurance Company of Canada, 2017 ONCA 73

[Doherty, MacPherson and Lauwers JJ.A.]

Counsel:

G. Bailey and B. Shores, for the appellant

J. Lin and D. Yoon, for the respondent

Keywords: Insurance Law, Policies, Cancellation, Statutory Accident Benefits, Arbitration, Evidence, Abuse of Process, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, Evidence Act, s. 22.1

Facts:

On April 25, 2010, a vehicle driven by Patrick Cadieux collided with a truck. Mr. Cadieux’s four-year-old son, a passenger in his vehicle, suffered significant injuries in the crash. The son claimed Statutory Accident Benefits under the Insurance Act, R.S.O. 1990, c. I.8. The Cadieux vehicle had been insured by Intact (the “respondent”). Intact claimed, however, that it had cancelled the policy five days before the accident for non-payment of premiums. Federated (the “appellant”) insured the truck involved in the accident.

Under the provisions of s. 268(2)1.(ii) of the Insurance Act, Intact was responsible to pay the Statutory Accident Benefits if it was the insurer of the Cadieux vehicle at the time of the accident. If, however, that policy had been cancelled before the accident, then responsibility for payment of the Statutory Accident Benefits would fall on Federated as the insurer of the other vehicle involved in the accident.

Intact and Federated were obligated to arbitrate their dispute pursuant to regulations under the Insurance Act. They entered into an arbitration agreement which, among other things, empowered the arbitrator to determine procedural and interlocutory matters on the arbitration. Intact paid Mr. Cadieux’s son’s Statutory Accident Benefits on an ongoing basis while the arbitration proceeded.

At the arbitration, the parties asked the arbitrator to determine a preliminary issue. Although the parties put that issue before the arbitrator in an informal manner, the Court of Appeal was satisfied that they agreed that Mr. Cadieux had been convicted of driving without insurance at the time of the accident contrary to s. 2(1) of the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25.

Intact and Federated asked the arbitrator to decide whether the abuse of process doctrine prevented Federated from leading evidence that Mr. Cadieux had insurance at the time of the accident. Federated wanted to lead evidence that because Intact had not followed the required procedures when purporting to cancel the policy, Mr. Cadieux was insured at the time of the accident by Intact. Intact maintained that Mr. Cadieux’s status as an insured or uninsured driver had been decided in the proceedings in which he was convicted of driving without insurance and that it would be an abuse of process to permit Federated to re-litigate that issue.

On the preliminary motion, Federated filed transcripts of examinations of two Intact employees. That evidence raised legitimate questions about Intact’s notification to Mr. Cadieux of the policy cancellation. Proper notice is a precondition to cancellation for non-payment.

The arbitrator held that the abuse of process doctrine should not prevent Federated from leading evidence that the driver was in fact insured at the time of the accident. On appeal, the application judge reversed the arbitrator, holding that the issue could not be re-litigated in the context of the arbitration.

The Court of Appeal granted leave to appeal from the application judge’s order. Accordingly, the Court of Appeal was required to decide whether the abuse of process doctrine as described in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 (“CUPE”), precluded Federated from leading evidence at an arbitration that the vehicle in which the injured person was a passenger was covered by an automobile insurance policy issued by Intact.

Issue:

(1)  Did the application judge err by reversing the arbitrator’s order?

(2) Would re-litigation amount to an abuse of process?

Holding:

Appeal allowed. Arbitrator’s order restored.

Reasoning:

(1) Yes. In permitting Federated to lead evidence that Mr. Cadieux was insured at the time of the accident, the arbitrator emphasized that Federated had not been a party to the proceeding that had resulted in Mr. Cadieux’s conviction. Consequently, Federated had no prior opportunity to raise the argument that Intact had not complied with the provisions governing policy cancellation.

In reversing the arbitrator, the application judge held that the arbitrator’s decision that Federated could challenge the facts underlying Mr. Cadieux’s conviction raised a question of law reviewable on a correctness standard. He also concluded that Federated had failed to lead any “evidence to the contrary” as required by s. 22.1 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 (“Evidence Act”). That section provides that proof of a prior conviction is proof that the crime was committed by the convicted person “in the absence of evidence to the contrary”. The application judge held that as Federated had not led any “evidence to the contrary” under s. 22.1, the arbitrator “erred in law by refusing to apply the doctrine of abuse of process” to prevent Federated from leading evidence that Mr. Cadieux had insurance at the time of the accident.

The application judge briefly considered the abuse of process doctrine in more general terms. After referring to CUPE, and noting that the consequences of a conviction for driving without insurance were sufficiently significant to warrant a serious defence to the charge, the application judge returned to s. 22.1 of the Evidence Act. He reasoned that because litigants who were not parties to the proceeding in which the conviction was entered could resort to s. 22.1 to prove the conviction in the subsequent proceeding, the arbitrator had erred in holding that Federated’s non-involvement in the proceeding resulting in the conviction was a significant consideration in his decision to allow Federated to re-litigate Mr. Cadieux’s insurance status.

The Court of Appeal determined that the application judge confused the operation of s. 22.1 of the Evidence Act and the abuse of process doctrine. That confusion led him into error. Applying the CUPE analysis to this case, the interplay between s. 22.1 of the Evidence Act and the abuse of process doctrine can be described in the following terms. Intact, relying on s. 22.1, argued that proof that Mr. Cadieux had been convicted of driving without insurance at the time of the accident proved, for the purposes of the arbitration, that he was driving without insurance at that time, negating Intact’s responsibility to pay Statutory Accident Benefits under the priority scheme in the Insurance Act. Federated responded to Intact’s position with “evidence to the contrary” consisting of evidence that Intact had not properly cancelled the policy, meaning that Mr. Cadieux was insured and that Intact was responsible for the Statutory Accident Benefits. Intact, in turn, argued that the abuse of process doctrine should be applied to prevent Federated from leading its “evidence to the contrary.”

On the preliminary motion, the arbitrator had to decide if the abuse of process doctrine should block Federated from leading its “evidence to the contrary.” The arbitrator was not asked to decide whether Federated’s evidence would in fact negate the evidentiary value of the proof of Mr. Cadieux’s conviction for driving without insurance.

The application judge erroneously held that the preliminary motion turned on whether Federated had led sufficient “evidence to the contrary” to rebut the evidence offered by proof of Mr. Cadieux’s conviction for driving without insurance. The outcome of the motion depended, not on whether Federated had led “evidence to the contrary” under s. 22.1, but on whether Federated had satisfied the arbitrator that in the circumstances it should be permitted to challenge the prior conviction with “evidence to the contrary.” Federated’s evidence that the Intact policy had not been properly cancelled was offered to demonstrate that if Federated was allowed to re-litigate Mr. Cadieux’s insurance status, it had evidence supporting its claim that Mr. Cadieux was insured.

(2) No. The application judge’s legal errors are not necessarily determinative of the outcome of the appeal. Therefore, the Court of Appeal was also required to consider whether a proper application of the abuse of process doctrine precluded re-litigation of whether Mr. Cadieux was insured at the time of the accident.

The preliminary motion before the arbitrator proceeded on the basis that Mr. Cadieux had been convicted of driving without insurance at the time of the accident. Federated, as the party seeking to re-litigate Mr. Cadieux’s insurance status, had the onus of demonstrating that re-litigation would not, in the circumstances, amount to an abuse of process.

The Court of Appeal determined that fairness to Federated strongly dictates that it should have an opportunity to demonstrate that Mr. Cadieux was insured at the time of the accident. Intact suffers no unfairness in allowing Federated that opportunity. In addition, re-litigation of Mr. Cadieux’s insurance status in the context of the private arbitration between the insurers has no negative impact on the integrity of the overall adjudicative process and may in fact enhance that integrity by generating a more reliable result. These factors combine to satisfy the onus on Federated to show that re-litigation would not constitute an abuse of process.

Walters v. Ontario, 2017 ONCA 53

[Strathy C.J.O., LaForme and van Rensburg JJ.A.]

Counsel:

S. Blake, R. V. Bambers and J. Claydon, for the appellant, Her Majesty the Queen in right of Ontario

A. Camman, D. R. Fiske and M. Arzaga, for the respondents, Jason Clive Walters, by his litigation guardian, Pearline Samuda, and Pearline Samuda

Keywords: Torts, Negligence, Crown Liability, Correctional Facilities, Duty of Care, Standard of Care, Policy Decisions, Justiciability, Evidence, Hearsay, Prior Inconsistent Statements, Standard of Review, Mixed Fact and Law, Palpable and Overriding Error

Facts:

This case concerns the provincial Crown’s liability for injuries that one or more inmates at a provincial jail inflicted on a fellow inmate. The victim alleges that corrections officials, through negligent conduct in the course of their employment, facilitated the attack. Jason Walters, the primary plaintiff and respondent, was a low-level member of a gang called “the Malvern Crew”; Tyshan Riley was a “senior functionary, if not the leader” of another gang, “the Galloway Boyz”. At the time of the incident, these two gangs, each of which was from Scarborough, were engaged in an ongoing “turf war”. When Walters arrived at the Toronto Jail (the “Don Jail”) in November 2008, the administration placed him in Riley’s unit.

While he was incarcerated at the Don Jail, Walters suffered a severe beating from one or more fellow inmates. Walters sued various parties, including Her Majesty the Queen in right of Ontario (“Ontario”) and the Ministry of Community Safety and Correctional Services (“MCS”), claiming damages for injuries that he alleged the Don Jail’s correctional officers (“COs”) had caused by negligently failing to prevent the assault.

The trial judge held that the Don Jail’s policy of separating members of the same gang negated neither the COs’ common law duty of care to persons in their custody, nor Ontario’s vicarious liability for any breach by the COs of that duty of care. He found that Riley had directed the assault on Walters, and that the COs should have known at the time of Walters’s placement that Riley was likely to attack members of rival gangs. With the support of those findings, the trial judge concluded that the COs were negligent in housing Riley and Walters in the same unit, and that their negligence caused the plaintiff’s injuries.

Ontario appealed.

Issue:

  1. Was the trial judge wrong in his analysis of the duty of care that the corrections officials owed to Walters, an inmate?
  2. Did the trial judge make any reviewable errors in his application of the relevant standard of care to the Don Jail’s corrections officials?
  3. Was the trial judge unreasonable in concluding that the negligence of one of the corrections officials caused Walters’s injuries?

Holding:

Appeal dismissed.

Reasoning:

1.No. Ontario submits that the trial judge made two errors. (a) Ontario argues that he held the province directly liable, whereas the law generally holds Ontario liable in negligence only vicariously, through the negligence of specific Crown employees or agents; (b) Ontario claims that the trial judge erred in holding the Crown liable for two “core policy decisions”.

(a) The Court of Appeal did not agree that the trial judge failed to apply the principle of vicarious liability to the facts of this case. He did not, as Ontario asserts, dispositively conflate the concepts of direct and vicarious liability. Ontario relies on various comments in the trial judge’s reasons to illustrate this point. However, even if a generous reading of the referenced comments could allow for such an interpretation, when the trial judge’s reasons are read as a whole — which they must be — it is beyond question that he applied the correct legal principles and did not hold Ontario directly liable.

Any liability of Ontario flowing from these facts flowed through the negligence of a specific CO, Steve Aspiotis (“Aspiotis”), in housing Walters with Riley. In his testimony, Aspiotis stated that he was indeed the CO that made this housing decision. The trial judge made no reviewable error in this part of his analysis.

(b) “Core” or “true” public policy decisions are non-justiciable as long as they are “neither irrational nor taken in bad faith”, so an employee or agent of a public authority owes no common-law duty of care in making such a decision. At trial, Ontario argued that the decision to put Walters in the Unit with Riley was not reviewable by the court because the decision was reasonable and based on a “true” policy decision. On appeal, Ontario maintains this argument.

However, Ontario did not adduce evidence that the policy directed COs not to consider inmate incompatibility beyond any information on the relevant inmates’ Offender Tracking Information System (“OTIS”) cards. Also, there was no evidence suggesting that to require COs to take account of inmate incompatibility, as well as “numeric balancing”, when assigning inmate housing would constitute the kind of “weighing of social, economic and political considerations” that is the responsibility of the executive and the legislature rather than the judiciary. Therefore, the trial judge’s finding that Aspiotis should have considered Walters’s incompatibility with Riley was not inconsistent with the policy’s immunity.

2.No. The trial judge’s finding that Aspiotis breached the standard of care had a sufficient evidentiary basis. Compliance with the standard of care is a question of mixed law and fact. The trial judge’s finding that Aspiotis should have known not to place Walters in the same unit as Riley does not disclose a “palpable and overriding error” that would justify this court’s intervention.

3.No. Ontario claims that the trial judge made two errors in concluding that the negligence of the Don Jail’s COs in housing Walters and Riley together caused Walters’s injuries. First, Ontario says the trial judge’s reliance on the evidence of Lonny Pearson (“Pearson”), an ex-inmate who claimed to have witnessed the event, in the form of a statement to police officer Angelo Xinos (“Xinos”) was in error because it was a prior inconsistent statement that was never put into evidence for the truth of its contents. Second, Ontario argues that he improperly reconciled inconsistencies in Pearson’s evidence — including Pearson’s failure to pick Riley out of an identification lineup — by relying on the “con-code” (the purported understanding among inmates that they should not “rat” on each other because fellow inmates might take retribution for inculpatory testimony).

Although there were inconsistencies in Pearson’s testimony, he adopted the very statements on which the trial judge relied in making his findings on the identity of Walters’s assailant. In his reasons, the trial judge accepted that Pearson’s evidence contained some “prevarication”, but he was satisfied that “the evidence that was recorded in the original interview was consistent with that portion of his trial evidence that I accept.” Therefore, this is not a case of using hearsay, in the form of a prior statement, for the truth of its contents. The prior statements recorded by Xinos indicated that, according to Pearson, the assailant was a black man of athletic build who had been in court earlier that day and had come out of cell 10. In his trial testimony, Pearson agreed that the assailant was a black man of athletic build who had been in court earlier that day and had come out of cell 10.

Next, there was no impropriety in the trial judge’s discussion of the “con-code”. The menacing effects of the “con-code” on an inmate’s testimony are routinely noted in the case law to deal with inconsistencies affecting a witness’ credibility. The Court of Appeal finds no reason why the trial judge was not entitled to take this factor into account when assessing Pearson’s credibility. In any case, the trial judge noted how Xinos’ notes corroborated Pearson’s testimony, which would mitigate any damage caused by the effects of the “con-code”. Moreover, Pearson was not inconsistent on the specific statements on which the trial judge relied to make his causation findings.

Cruz-Lee v. Lee, 2017 ONCA 61

[Simmons, Brown and Roberts JJ.A.]

Counsel:

R. Sawhney, for the appellant

No one appearing for the respondent

Keywords: Endorsement, Family Law, Matrimonial Home, Evidence, Experts, Battered Wife Syndrome, , Family Law Rules, Rule 20.01, Date of Separation, Standard of Review, Facts, Palpable and Overriding Error

Facts:

Following a nine-day trial, the trial judge found that the husband was the sole owner of the matrimonial home, as the wife had gifted her interest in the home to him for the purpose of avoiding creditors. The trial judge also found that the wife’s claim for an equalization of the net proceeds of sale of the matrimonial home was statute-barred. In the alternative, the trial judge found that an equal division of the sale proceeds would be unconscionable due to the wife’s reckless depletion of family property, the fact that the husband paid 100% of the acquisition costs and expenses related to the home and the wife’s abusive and controlling behaviour throughout the marriage toward both the husband and the child.

Issue:

  1. Did the trial judge err in failing to admit an expert report indicating that the wife suffers from post-traumatic stress disorder, or, in the alternative, erred in failing to appoint an expert under rule 20.1 of the Family Law Rules, O. Reg. 114/99, to inquire into the wife’s psychiatric condition?
  2. Did the trial judge err in failing to find that the date of separation was in 2010, when the parties physically separated, and that her equalization claim was therefore within the limitation period?
  3. Did the trial judge make unreasonable factual findings or misapprehend the evidence due to his failure to inquire into the existence of battered wife syndrome and the wife’s psychiatric issues?

Holding: Appeal Dismissed.

Reasons:

1.No. The appellant did not give notice of her intention to rely on a psychiatric report in advance of the trial. The psychiatric report the appellant sought to have admitted at trial is premised largely on the appellant’s self-reporting of events and does not purport to assess her evidence. Nor is there fresh evidence from a psychiatrist or the appellant and a psychiatrist, to support the argument that other psychiatric evidence would somehow have assisted in the assessment of the appellant’s evidence.

Counsel for the wife confirmed that he does not assert that the appellant was mentally incapable at trial such that she required a litigation guardian. In the face of this acknowledgement and in the absence of fresh evidence concerning the appellant’s psychiatric condition and how it impacted her evidence, the Court of Appeal did not accept that the trial judge was under any obligation to appoint counsel for the appellant or an expert to assess her condition under rule 20.1.

2.No. The trial judge took into account the fact that the parties lived together, albeit separately, under the same roof for a long period; that they continued to conduct a business together and that the wife home-schooled the child. However, such an argument does not demonstrate palpable and overriding error. The trial judge was aware of these factors but nonetheless concluded, for other reasons, that the parties had separated soon after they purchased the matrimonial home.

3.No. The appellant did not demonstrate a palpable and overriding error in the trial judge’s findings concerning ownership of the matrimonial home.

Elaziz v Wahba, 2017 ONCA 58

[Simmons, Brown and Roberts JJ.A.]

Counsel:

D. Sherr, for the appellant

M. Trenholme, for the respondent

Keywords: Endorsement, Family Law, Access, Variation

Facts:

The original order for access was made on February 28, 2014. A change order was made on June 10, 2016, under which the motion judge permitted enhanced overnight access to the father largely to respond to some issues the child was having concerning evening change-overs of childcare responsibilities as between parents. Change-overs proceed more smoothly if they do not occur at the child’s bedtime but rather in neutral territory at the commencement of the school day.

The appellant argued that in crafting his decision, the motion judge originally provided for Monday and Thursday overnights with the father in alternate weeks, but then, in response to a concern expressed by the mother, changed his endorsement so that the father would have overnight access on Thursdays only in alternate weeks. The concern expressed by the mother was that the revised schedule would amount to shared custody for child support purposes, which would create issues concerning child support.

The appellant argued that the trial judge erred in principle in revising his endorsement to limit the father’s alternate week access to Thursday overnights only, based on a factor unrelated to the best interests of the child, namely the impact of the change on the child support regime.

Issue:

Whether the trial judge erred in revising his endorsement regarding access.

Holding:

Appeal dismissed.

Reasoning:

The trial judge made a change order to respond to the father’s concerns about the child’s reaction to evening change-overs. Upon hearing the wife’s objection to his originally crafted order, the motion judge deleted Monday overnight access in alternate weeks. The motion judge’s intention was to respond to the presenting issue of evening change-overs. It was not his intention to change the overall access scheme of joint custody – but not shared parenting – which was crafted following trial. The Court observed that the order as finalized provided for enhanced access to the father.

Routh Chovaz Insurance Brokers Inc. v. Aviva Insurance Company of Canada, 2017 ONCA 55

[Simmons, Brown and Roberts JJ.A.]

Counsel:

M. Stoeva, for the appellant
C. Reain and M. Fan, for the respondents

Keywords: Endorsement, Contracts, Insurance, Brokers, Summary Judgment

Facts:

The appellant, Routh Chovaz Insurance Brokers Inc., sues the respondent, Aviva Insurance Company of Canada, to recover $23,658.31 it paid to a client, Mr. Waqar Zaidi, as compensation for damages a rear-end collision caused to his 2010 Mercedes-Benz.

Mr. Zaidi owned a 2008 Mercedes Benz, which he had insured through Routh Chovaz with the Jevco Insurance Company. In 2013, he replaced the 2008 model with a 2010 Mercedes. He asked Routh Chovaz to arrange insurance for his new vehicle with Jevco. Routh Chovaz issued a new motor vehicle liability insurance card, a “pink slip”, to Mr. Zaidi, but it failed to process the vehicle model change with Jevco.

When the policy came up for renewal a year later in March 2014, Routh Chovaz arranged for insurance with Aviva. Through its further error, Routh Chovaz arranged the insurance for Mr. Zaidi’s former car – the 2008 Mercedes – not the 2010 Mercedes. Aviva issued a policy of insurance for the vehicle specified by Routh Chovaz – the 2008 Mercedes. However, Routh Chovaz orally informed Mr. Zaidi that insurance had been arranged with Aviva for his 2010 Mercedes.

On October 2, 2014, Mr. Zaidi’s car was involved in a rear-end collision (the “Accident”). He claimed under the Aviva policy for the damage to the car. Aviva denied coverage on the basis the policy it issued only covered the 2008 car.

Mr. Zaidi looked to Routh Chovaz for compensation. Its errors and omissions insurer paid Mr. Zaidi’s claim of $23,658.31. It then commenced this subrogated claim against Aviva seeking recovery of the $23,658.31 and a declaration that Aviva was responsible to defend and indemnify for any personal injury claims resulting from the Accident.

The motion judge granted summary judgment to Aviva, dismissing Routh Chovaz’s action. Routh Chovaz appeals.

Issue:

Did the motion judge err and depart from established legal principles in concluding that Aviva was not required to indemnify Routh Chovaz?

Holding:

Appeal allowed.

Reasoning:

Yes. The motion judge found the relationship between Routh Chovaz and Aviva was governed by a Brokerage Agreement dated June 15, 2011, between Aviva and Prolink Broker Network Inc. (“Prolink”). That finding necessitated a determination by the motion judge of whether Routh Chovaz had established entitlement to payment of the $23,658.31 under the terms of the Brokerage Agreement. Although the motion judge held the terms of the Brokerage Agreement provided Aviva with a complete defence to Routh Chovaz’s claim, apart from quoting several sections of the Brokerage Agreement, he did not explain how he reached that conclusion. To determine whether Routh Chovaz was entitled to indemnification under the Brokerage Agreement would require the motion judge to consider two issues under s. 10.1 of the Brokerage Agreement. First, is the amount claimed by Routh Chovaz one “arising as a direct result of [Aviva’s] negligent acts or omissions”? Second, if it is, then did Routh Chovaz cause, contribute to or compound such liability by its own acts or omissions and, if so, to what extent? The motion judge did not deal with either issue in his reasons. As a result, the reasons are not sufficient to permit appellate review. Consequently, the summary judgment dismissing Routh Chovaz’s action must be set aside.

Ontario v. Chartis Insurance Company of Canada, 2017 ONCA 59

[Sharpe, Pepall and Hourigan JJ.A.]

Counsel:

G. MacKenzie and B. MacKenzie, for the appellants

W. Manuel and J. Sydor, for the respondent

Keywords: Solicitor and Client, Conflicts of Interest, Disqualification, MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235

Facts:

The respondent, Her Majesty the Queen in Right of the Province of Ontario (“Ontario”), sued the appellants, Chartis Insurance Company and American Home Assurance Company (collectively, “AIG”), as a result of an insurance coverage dispute. Ontario retained the law firm of Theall Group LLP (“TG”) as its counsel in the coverage dispute. Michael Foulds is a lawyer who worked for TG and was intimately involved in working with senior counsel to Ontario on the dispute. Foulds then left that firm and joined the law firm of Lloyd Burns McInnis LLP (“LBM”) as a partner. LBM represents AIG in the coverage dispute. At his new firm, Foulds does not work on the coverage action but he spends 50 to 60 percent of his time working with Douglas McInnis, who is counsel to AIG on the dispute. Foulds also works on other files for AIG.

AIG moved for a declaration that the ethical screen put in place by Foulds’ new firm, LBM, was sufficient to prevent disclosure of Ontario’s confidential information and that it was in the interests of justice that the firm continue to act in the action. In turn, Ontario brought a cross-motion seeking an order that Foulds’ new firm, LBM, be disqualified from continuing to act for AIG due to an inherent conflict of interest caused by Foulds, who was formerly Ontario’s counsel, joining his new firm to work with senior counsel to AIG. The application judge agreed with AIG’s position, granted its motion, and dismissed Ontario’s cross-motion. The Divisional Court overturned that decision.

Issue:

  1. Did the Divisional Court err in applying the correctness standard of review?
  2. Did the Divisional Court err in its assessment of the application judge’s decision?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Divisional Court properly identified a disqualification motion as being discretionary in nature. Such a decision is reversible where the court has misdirected itself, has come to a decision that is so clearly wrong that it amounts to an injustice, or where the court gives no or insufficient weight to relevant considerations.

(2) No. Although the Divisional Court’s emphasis on the dissent in MacDonald Estate was unnecessary, the Court agreed with the Divisional Court that the application judge misdirected himself. He did so in two respects.

i. LSUC Guidelines not Dispositive in Circumstances of this Case

Having identified the proper test as described in MacDonald Estate, the application judge proceeded to treat the guidelines as an exhaustive answer and effectively reversed the onus of proof. The application judge acknowledged the applicable presumption that lawyers who work together share confidences. But, in considering whether that presumption had been rebutted, at para. 41, he asked the wrong question.: “What more could be done to protect the confidentiality of [Ontario’s] information?”. To ask this question precludes the possibility that no measure could be sufficient to address the degree of professional contact between the two lawyers. The application judge assumed that every conflict could be successfully met by the imposition of the guidelines. This was in error.

It is not for the court to develop standards; that is the role of the governing bodies of the self-governing legal profession. The court’s role is merely supervisory. But neither MacDonald Estate, nor the guidelines themselves, suggest that the court should abdicate its supervisory responsibility.

Any disclosure of the subject matter of the confidential information held by Foulds has the potential to be very prejudicial to Ontario. The dispute between AIG and Ontario relates to coverage. Significantly, Foulds was privy to the failed negotiations with AIG and is in possession of the terms of the confidential settlements entered into between Ontario and the other insurers who were originally disputing coverage along with AIG.

The objective of the guidelines is to limit or screen interaction. The most striking feature of this case is that Foulds spends 50 to 60 percent of his time working with McInnis. In the face of that fact, it cannot be said that there is clear and convincing evidence that all reasonable measures are being taken to ensure that no disclosure would occur by Foulds to AIG’s counsel. The public, represented by the reasonably informed person, could not be satisfied that no use of confidential information would occur between two people with such an intense working relationship.

ii. Paramountcy of the Integrity of Legal Profession

Secondly, the application judge treated the examination of the conflict issue as a balancing exercise between the three competing interests: protecting Ontario’s confidential information, the integrity of the legal system, and the right to choose one’s own counsel. In the court`s view, he erred is so doing.

Although the right to one’s choice of counsel is one of the three values identified in MacDonald Estate as bearing on the issue of conflict, it is not paramount. As noted in that case, and as rephrased by the Saskatchewan Court of Appeal in Wallace v. Canadian National Railroad, at para. 55, “primacy [is] given to the integrity of both the legal profession and the administration of justice over…a client’s choice of lawyer and lawyer mobility.”

While in MacDonald Estate, at p. 1263, Sopinka J. mentions the word “balance”, it is in a different context. There, he was addressing standards to be developed by the Canadian Bar Association which would give precedence to the preservation of the confidentiality of information imparted to a solicitor, but would also reflect the interests relating to choice of counsel and mobility. He was not referring to the court’s role in addressing a disqualification motion. A court is to give primacy to the integrity of the legal profession and the administration of justice.

Hampton Securities Limited v. Tassone, 2017 ONCA 69

[Simmons, Brown and Roberts JJ.A.]

Counsel:

C. Linthwaite, for the appellant

J. Kirkness, for the respondents

Keywords: Endorsement, Employment Law, Contracts of Employments, Interpretation, Standard of Review, Facts, Palpable and Overriding Error

Facts:

The appellant, Hampton Securities Limited, employed the respondent, Joseph Tassone, to trade in securities using the company’s own capital. During Tassone’s employment, Hampton maintained a trading inventory account (the “Inventory Account”) that recorded the gains and losses resulting from Tassone’s trades with its capital. In the months when Tassone’s trades achieved no profits, he would earn no remuneration; only once his trades again generated profits that were sufficient to overcome his accumulated losses, would he earn anything. When Tassone’s employment ended in September, 2011, his Inventory Account stood in a loss position – approximately $700,000.

Hampton took the position Tassone was personally responsible for the loss and demanded he make good on it. Hampton applied the approximately $100,000 of Tassone’s personal funds kept in a personal reserve account against the loss. The company also liquidated Tassone’s shares in Hampton and applied the proceeds to the loss. Hampton then sued Tassone for the remaining net loss, about $600,000. Hampton also attacked Tassone’s transfer of title in the matrimonial home to his wife, the respondent Anne Tassone, as a fraudulent conveyance.

Tassone denied any personal liability for the loss. He counterclaimed for wrongful dismissal and damages for Hampton’s wrongful application of his personal funds against the loss.  Tassone moved for partial summary judgment on the issue of whether he was personally responsible for the losses in his Inventory Account. The parties agreed the motion would finally decide the issue of liability on Hampton’s main claim.

The motion judge granted Tassone partial summary judgment. He held Hampton was not personally responsible for the accumulated losses, save to the extent of the amount in his personal reserve account. The motion judge dismissed Hampton’s claim for payment of the accumulated losses in excess of Tassone’s retained personal reserve.

Issue:

 

  1. Did the motion judge misdirect himself regarding the proper question to be decided?
  2. Should the reasons of the motion judge be read as containing a finding Tassone was required to indemnify Hampton for losses suffered due to his trading?
  3. Did the motion judge err in interpreting the employment contract because he failed to follow the decision of this court in Refco Futures (Canada) Ltd. v. Keuroghlian?
  4. Did the motion judge err in failing to rely on the evidence of its President, Mr. Peter Deeb, that it was an established practice in the industry that departing employees were responsible for accumulated trading losses?
  1. Did the motion judge err in failing to decide whether Tassone failed to give adequate notice of his cessation of employment and to consider whether trading gains he might have generated during a proper notice period would reduce the losses in the Inventory Account?

Holding:

Appeal dismissed.

Reasoning:

  1. No. In its factum, Hampton contends the proper question was whether it was an express or implied term of Tassone’s employment contract that “the end of employment would relieve Tassone of his established liability to indemnify Hampton for already-incurred losses.” However, the Court of Appeal saw no merit in this argument. The motion judge clearly recognized that the issue of Tassone’s liability for losses in his Inventory Account when his employment ended turned on the terms of his contract of employment, including what, if any, obligation Tassone had to compensate or indemnify Hampton for losses in the Inventory Account. As the motion judge stated this was “largely a question of fact.”
  2. No. The Court of Appeal did not see how the motion judge’s reasons could be read in that fashion. His findings about the terms of the employment contract were to the contrary. The motion judge’s finding about the terms constituting the employment contract between the parties and their interpretation is entitled to deference, absent palpable and overriding error.
  3. No. Refco Futures (Canada) Ltd. v. Keuroghlian is distinguishable on its facts. In it, the finding of liability of a foreign exchange trader for losses resulting from trades on behalf of certain clients was based on the express terms of the trader’s employment agreement.
  4. No. Contrary to Hampton’s submission, Tassone did not admit to such a practice in his pleading. Of more significance, Hampton did not adduce independent expert evidence of any such industry practice. The motion judge held he was not prepared to make a finding of industry practice in the absence of such evidence. He committed no error in so deciding.
  1. No. Tassone submits this issue was not raised before the motion judge and, in any event, was not pleaded by Hampton as a basis for its claim. The Court of Appeal accepts Tassone’s submission on this point. Neither Hampton’s statement of claim or fresh as amended reply and defence to counterclaim pleads that Tassone’s failure to give proper notice contributed, in any manner, to the accumulated losses in the Inventory Account.

Hirchberg v. Branson Drug Store, 2017 ONCA 62

[Cronk, van Rensburg and Pardu JJ.A]

Counsel:

T. Hirchberg, acting in person

C. Hubbard and A. Blanchard, for the respondents Dr. Mary Doherty, Dr. Todd Mainprize, Dr. Ken Peckham and Dr. Michelle Hart

L. Crowell, for the respondents North York General Hospital and Sunnybrook Health Sciences Centre

Keywords: Endorsement, Torts, Negligence, Medical Malpractice, Standard of Care, Causation, Expert Opinion Evidence, Summary Judgment

Facts:

The appellant appealed the summary dismissal of a medical malpractice action. The action was brought as a result of the death of the appellant’s common law spouse, Ms. Dubins, who passed away after she was diagnosed with terminal brain cancer. At the core of the appellant’s claim was a concern about Ms. Dubins’ treatment with the drug dexamethasone, commonly used to reduce cerebral swelling associated with brain tumours. In particular, the appellant alleged that the drug was terminated without tapering off, and that, having regard to the various risks associated with the drug, informed consent to its use was not obtained.

Summary judgment motions were brought after a significant amount of documentary and oral discovery had taken place. The moving parties relied on affidavits of some of the defendant treating physicians as well as three expert reports. In response to the summary judgment motions, the appellant delivered two “expert witness declarations” of Dr. Mark Levin, answering certain questions about the drug dexamethasone.

The action was dismissed after the motion judge concluded that there was no genuine issue requiring a trial as against the respondent physicians or institutions.

Issues:

(1) Did the motion judge err in her treatment of the appellant’s expert evidence?

(2) Did the motion judge err in her conclusions regarding informed consent?

(3) Did the motion judge err by not considering other issues and causes of action raised by the statement of claim?

Holding:

Appeal dismissed.

Reasoning:

(1) No. It was incumbent on the plaintiff to provide expert opinions on standard of care and causation given the complexity of the medical malpractice case. Contrary to the appellant’s assertions, the motion judge did not “strike” Dr. Levin’s declarations. Rather, she considered whether Dr. Levin was qualified to provide an expert opinion on standard of care and causation, and she considered the content of his opinions. The motion judge did not err in her conclusion that Dr. Levin was not qualified to provide such opinions, and further that his two declarations (that consisted of answers to questions about the drug in question), did not address the particular circumstances of the case and did not speak to the issues of standard of care or causation.

The Court also rejected the appellant’s assertion that the motion judge ought to have permitted him to have obtained a further expert opinion, as the time for delivery of expert reports under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, had not expired. The obligation on the appellant, in responding to a summary judgment motion, was to put forward all the necessary evidence to establish that there was a genuine issue requiring a trial. The appellant did not seek an adjournment or additional time to obtain a further expert opinion; consequently, there was no basis for the motion judge to dismiss or adjourn the motions so that the appellant could obtain another medical report.

(2) No. The motion judge made no error of law or principle: “The evidence was that Ms. Dubins and her four powers of attorney for personal care were advised of and understood the material risks of treatment, including the risks of the subject drug, and provided their fully informed consent.”

(3) No. The function of the motion judge in dealing with a summary judgment motion is to consider the evidence, and not simply the pleadings. What was relied on as expert evidence by the appellant was limited to concerns about the risks and use of the drug dexamethasone, and although other matters may have been pleaded, there was no expert evidence to address such issues.

The appellant led no expert opinion evidence on the respondents’ summary judgment motions to establish a breach of the standard of care by any of the respondents or causation. By contrast, the respondents led expert evidence to establish that the respective standards of care were met, and to negate causation.

Criminal and Review Board Decisions:

R v. Mansingh, 2017 ONCA 68

[Doherty, Blair and Lauwers JJ.A.]

M.Halfyard and B. Vandebeek, for the appellant

M.Adams, for the respondent

Keywords: Criminal Law, Gun-Related Charges, Jury Selection, Racial Bias, W.D. Instruction, Sentencing, R. v. Nur

R. v. Ally, 2017 ONCA 67

[Doherty, Blair and Lauwers, JJ.A.]

M.Kerbel, Q.C., for the appellant

S.Porter, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Jury Instruction, R v. Roy, Highway Traffic Act

R. v. Campbell, 2017 ONCA 65

[Simmons, van Rensburg and Miller JJ.A.]

J.Shanmuganathan, for the appellant

N.Thomas, for the respondent

Keywords: Criminal Law, Breaking and Entering, Robbery, Identification Evidence, R. v. Olliffe

R. v. Kler, 2017 ONCA 64

[Cronk, Juriansz and Watt JJ.A.]

J.A. Greenspan, B.J. Greenshields, for the appellant

B.Gluckman, for the respondent

Keywords: Criminal Law, Conspiracy to Import Heroin, Importation of Heroin, Sentencing

R. v. Kamali-Mafroujaki, 2017 ONCA 57

[Doherty, Blair and Lauwers JJ.A.]

M.C. Halfyard, for the appellant

P.Fraser, for the respondent

Keywords: Criminal Law, Endorsement, Interpreters

R. v. Pashaziri, 2017 ONCA 60

[Weiler, Pepall and Trotter JJ.A.]

W.Cunningham, for the appellant

M.Lai, for the respondent

Keywords: Criminal Law, Endorsement, Aggravated Assault, Vetrovec Witnesses

Waite (Re), 2017 ONCA 56

[Doherty, Blair and Lauwers JJ.A.]

E.Dann, for the appellant

K.Rawluk, for the Attorney General

J.Blackburn, for the North Bay Regional Health Centre

Keywords: Endorsement, Ontario Review Board, Serious Risk of Harm to Public, Criminal Code, s.672.54, Mental Disorder, Medication Non-Compliance, Risk to Community, Re Petroniuk 2016 ONCA 186

Trang (Re), 2017 ONCA 63

[Doherty, Blair and Lauwers JJ.A.]

  1. Szigeti and J. Berger, for the appellant
  2. De Filippis, for the respondent the Attorney General for Ontario
  3. Blackburn, for the respondent the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Endorsement, Ontario Review Board, Significant Risk of Serious Harm to the Public Criminal Code, s. 672.54, Discharge Disposition, Treatment Impasse, Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, Transfer

Gefen v. Gaertner, 2017 ONCA 66

[Doherty, Weiler and Roberts, JJ.A.]

R.Moldaver, Q.C., for the appellant

J.D. Oelbaum and R. M. Spurr, for the respondent

T.Tulloch, for non-party Nestor Wolicki

Keywords: Endorsement, Documentary Discovery, Privilege

Harper v. Cox, 2017 ONCA 79

[Doherty, Brown and Miller JJ.A.]

G.S. Joseph and K.A. Maurina, for the appellant

R.G. Schipper, for the respondent

Keywords: Endorsement, Solicitor and Client, Assessments, Documentary Discovery

R. v. Ahmed, 2017 ONCA 76

[Epstein, Pepall and van Rensburg JJ.A.]

D.G. Curliss, Q.C. for Her Majesty the Queen

F.Addario and A.Burgess, for Misbahuddin Ahmed

Keywords: Criminal Law, Terrorism, Conspiracy to Commit Terrorism, R. v. Khawaja 2012 SCC 689

R. v. O’Leary, 2017 ONCA 71

[Doherty, Blair and Lauwers JJ.A.]

B.D. Barrie and D. N. Landry, for the appellant

C.Webb, for the respondent

Keywords: Criminal Law, Dangerous Driving, Racing

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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