ONTARIO COURT OF APPEAL SUMMARIES (APRIL 24-28, 2017)

Good evening,

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

One decision of note relaxing the commencement of a limitation period for professional negligence is Presidential MSH Corporation v. Marr Foster & Co. LLP. In this case, the respondent accountants filed the appellant’s tax returns after their due date, incurring damages in unpaid taxes, interest and penalties to the CRA. The appellant sued more than two years after the CRA’s decision to impose the penalties.  The appellant’s case was dismissed at first instance given the expiry of the limitation period.  The court allowed the appellant’s appeal, finding that the accountants’ efforts to mitigate their client’s damages in the year following the CRA’s assessment tolled the limitation period.

Have a great weekend.

Chad Kopach

Blaney McMurtry LLP

ckopach@blaney.com

Tel 416-593-2985

http://www.blaney.com/lawyers/chad-kopach

Table of Contents

Wallace (Re), 2017 ONCA 342 

Keywords: Endorsement, Bankruptcy and Insolvency, Power of Attorney, Contempt, Prescott-Russell Services for Children and Adults v. G. (N.)

Chernet v. RBC General Insurance Company, 2017 ONCA 337

Keywords: Summary Judgment, Motor Vehicle Accident, Rear-end Collision, Burden of Proof, Judicial Notice of scientific and technical matters

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325

Keywords: Summary Judgment, Limitation Period, Discoverability, Section 5 of the Limitations Act, 2002, “Appropriate Means”, Brown v. Baum, Volochay v. College of Massage Therapists of Ontario

Todd Family Holdings Inc. v. Gardiner, 2017 ONCA 326

Keywords: Tort Law, Deceit, Fraudulent Misrepresentation, Intellectual Property, Share Purchase, Ownership, Control

Ranieri v Nagari, 2017 ONCA 336

Keywords: Healthcare Consent Act, Consent and Capacity Board, Capacity to Consent to Treatment, New Issues on Appeal, Fresh Evidence on Appeal

Roberts v. Zoomermedia Limited, 2017 ONCA 327

Keywords: Employment, Summary Judgment, Severance, Termination Clause, Employment Standards Act, s. 61(1)

Abernethy v. Ontario, 2017 ONCA 340

Keywords: No Reasonable Cause of Action, Rule 21.02(1)(b) of the Rules of Civil Procedure, Frivolous and Vexatious Claims, Rule 25.11 of the Rules of Civil Procedure, Crown Immunity, Jones v. Tsige, Judicial Bias, S. L. v. Marson

J.K. v. Ontario, 2017 ONCA 332

Keywords: Endorsement, Motion to Quash Appeal, Interlocutory Order, Class Action, Youth Records

For Civil Endorsements, click here.

For Criminal Decisions, click here.

Civil Decisions:

Wallace (Re), 2017 ONCA 342

[Blair, Lauwers and Hourigan JJ.A.]

Counsel:

S. Zeitz, for the appellant, Brief & Associates Inc.

C. Dockrill, for the respondent, Alma Maria Wallace

Keywords: Endorsement, Bankruptcy and Insolvency, Power of Attorney, Contempt, Prescott-Russell Services for Children and Adults v. G. (N.)

Facts:

The Bankrupt, Alma Maria Wallace (aka Alma Maria Belacic), was required by order of Pattillo J. dated April 8, 2015 to execute a power of attorney with respect to her interest in a property in Croatia, which would enable the Trustee in Bankruptcy, Brief & Associates Inc., to complete a sale of the property. The Bankrupt did not appeal or seek a variation of that order and it remains in effect. However, the Bankrupt subsequently refused to execute the power of attorney.

Instead of determining whether the Bankrupt was in contempt, because doing so would serve no practical purpose, the bankruptcy judge made an order granting the Trustee authority to sign the power of attorney on behalf of the Bankrupt in the form tendered by the Trustee, with one change: she redacted the last sentence that would have enabled the Trustee to assign its powers to a third party in Croatia. She ordered, nonetheless, that if it became necessary to transfer the power of attorney to Croatian counsel to facilitate the sale process, the Trustee could return to court to seek that relief.

The Trustee appealed, not with respect to the main substance of the order, but with respect to the motion judge’s refusal to make a finding of contempt and with respect to the redaction of the last sentence of the power of attorney.

Issue:

(1) Did the bankruptcy judge err by failing to find the Bankrupt in contempt?

Holding:

Appeal dismissed.

Reasoning:

(1) No. the Court of Appeal saw no basis for interfering with the bankruptcy judge’s decision. She made an order in relation to the power of attorney that on the record matched the Trustee’s request for an effective power of attorney. There was no evidence before the court that the power of attorney with the judge’s redaction was insufficient to accomplish its goal of permitting the Trustee to realize the bankrupt’s Croatian assets.

Even if circumstances met the three-stage test for contempt as set out in such authorities as Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686 (C.A.), courts have long recognized the need to exercise caution prior to making a contempt order and making such an order is discretionary. The motion judge made a discretionary decision carving out instead an order that met the practical needs of the situation. She made no error in doing so.

Chernet v. RBC General Insurance Company, 2017 ONCA 337

[Strathy C.J.O., Gillese and Pardu JJ.A.]

Counsel:

M. Zatovkanuk, for the appellant

C. Kleinman, for the respondents Gregorio V. Galaites and Galites Gounell Zamora

Keywords: Summary Judgment, Motor Vehicle Accident, Rear-end Collision, Burden of Proof, Judicial Notice of scientific and technical matters

Facts:

The appellant appeals an order granting summary judgment dismissing his claim for damages arising from a motor vehicle accident. The appellant asserts that the motion judge erred: (a) by improperly taking judicial notice of scientific and technical matters in determining how the accident occurred and by failing to give the parties an opportunity to respond to his conclusions; (b) by misapprehending the evidence; and (c) by concluding that there was no genuine issue requiring a trial.

Issues:

(1) Did the motion judge err by improperly taking judicial notice of scientific and technical matters in determining how the accident occurred and by failing to give the parties an opportunity to respond to his conclusions?

(2) Did the motion judge err by misapprehending the evidence?

(3) Did the motion judge err by concluding that there was no genuine issue requiring a trial?

Holding:

Appeal dismissed.

Reasoning:

(1)The motion judge did not err in taking judicial notice. The motion judge did not improperly take judicial notice of matters that should have been the subject of expert evidence. He was simply drawing reasonable inferences from the uncontested facts. The damages to the respondents’ car were in the middle of the back and there was no damage to either car to suggest that the appellant’s car was sideswiped or cut off. Nor was there evidence of tire marks to suggest that one vehicle suddenly swerved in front of the other or that either vehicle came to a sudden stop. The inferences he drew were reasonable and refuted the appellant’s theory of how the accident occurred.

The motion judge was not required to advise the parties of the inferences he drew from these unchallenged facts. He was entitled to conclude that this evidence supported the evidence of the respondents and was inconsistent with the evidence of the appellant.

(2)The motion judge did not misapprehend the evidence. The appellant acknowledged that as the rear-ending party in a rear-end collision, he bears the onus of satisfying the court that the collision did not arise due to his negligence. The appellant gave conflicting explanations for how the accident occurred. His assertion that the respondents suddenly swerved in front of him and stopped was inconsistent with the physical evidence and with the respondents’ evidence, which the trial judge accepted. The Court disagreed that there was inconsistency in the respondents’ evidence or that the respondent driver admitted to having changed lanes prior to the accident. The Court also rejected the appellant’s pure speculation about how the accident might have happened.

(3)The motion judge did not err by concluding that there was no genuine issue requiring a trial. The appellant failed to demonstrate either an extricable error in principle or a palpable and overriding error in the motion judge’s assessment of the evidence. The motion judge’s conclusion that there was no genuine issue for trial is entitled to deference.

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325

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

A. Sternberg and D. Murynka, for the appellant

M. E. Girard, for the respondents

Keywords: Summary Judgment, Limitation Period, Discoverability, Section 5 of the Limitations Act, 2002, “Appropriate Means”, Brown v. Baum, Volochay v. College of Massage Therapists of Ontario.

Facts: The appellant, Presidential MSH Corporation, appealed from summary judgment dismissing its action against the respondents, its former accountant Himmelfarb, and his firm, Marr, Foster & Co. LLP. The respondents filed the appellant’s corporate tax returns after their due date. As a result, the CRA denied tax credits that would have been available had the returns been filed on time. The appellant suffered damages of approximately $550,000 in unpaid taxes, interest and penalties.

The appellant received the CRA’s Notices of Assessment disallowing the credits on April 12, 2010. The appellant immediately notified Himmelfarb. Himmelfarb advised Schmerz to retain a tax lawyer to determine how to solve the problem but did not advise him to obtain legal advice about a professional negligence claim against the respondents. Himmelfarb retained a lawyer who filed a Notice of Objection to the CRA assessments as well as an application for discretionary relief.

On May 16, 2011, the CRA advised that it intended to confirm the assessments. It confirmed them on July 7, 2011. As late as July 2011, there was a reasonable chance that the application for discretionary relief would mitigate some or all of the appellant’s loss.

On August 1, 2012, the appellant issued its Statement of Claim against the accounts. This was more than two years after the initial denial by CRA of the credits, but within two years of CRA’s refusal to alter the assessments in response to the Notice of Objection.

The motion judge granted summary judgment to the defendants and dismissed the claim.

Issues:

Was a proceeding against the respondents appropriate before August 1, 2010, and after the CRA appeal finally ran its course?

Holding:

Appeal allowed.

Reasoning:

The motion judge erred in holding that the appellant knew or ought to have known that its proceeding was appropriate as early as April 2010, when it received the CRA’s Notice of Assessment disallowing its tax credits. The proceeding was not appropriate, and the claim was not discovered until May 2011, when the CRA responded to the appellant’s Notice of Objection and advised that it intended to confirm its initial assessments.

Section 5(1)(b) of the Limitations Act, 2002, states that “A claim is discovered on the earlier of (a) the day on which the person with the claim first knew […] (iv) that, having regard to the nature of the injury, loss, or damage, a proceeding would be an appropriate means to seek to remedy it […]”. The “appropriateness” criterion of the discoverability principle depends on the specific factual or statutory setting of each individual case.

The case law suggests that a legal proceeding against an expert professional may not be appropriate if the claim arose out of the professional’s alleged wrongdoing but may be resolved by the professional him or herself without recourse to the courts, rendering the proceeding unnecessary. Although discoverability under more than one subsection of s. 5(1)(a) may be engaged in a single case, it is important not to collapse the analysis of discoverability of loss or damage and the defendant’s negligence or other wrong with the determination whether legal action is appropriate.

Another line of cases interpreting the section 5(a)(iv) of the Act involves a plaintiff’s pursuit of other processes having the potential to resolve the dispute between the parties and eliminate the plaintiff’s loss. This approach to discoverability is consistent with the rule in administrative law that it is premature for a party to bring a court proceeding to seek a remedy and that process has not fully run its course or been exhausted: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541.

Non-administrative, alternative processes have also been seen in some cases as having the potential to resolve a dispute, thus rendering a court proceeding inappropriate or unnecessary, such as waiting for a foreign appeal process to run its course before suing on the foreign judgment in Ontario.

The motion judge erred in distinguishing the present case from Brown when applying the appropriateness criterion under s. 5(a)(iv). Himmelfarb was involved in efforts to ameliorate the losses sustained by the appellants. It would not have been appropriate for the appellant to commence a proceeding until Himmelfarb’s efforts concluded.

Similarly, the CRA appeal process had the potential to eliminate the appellant’s loss, and could have resolved the dispute between the appellant and the respondents. These results would have made a proceeding unnecessary.

Todd Family Holdings Inc. v. Gardiner, 2017 ONCA 326

[Doherty, MacFarland and Rouleau JJ.A.]

Counsel:

M. I. Milne-Smith, C. Sayao and B. D. McLeese for the appellants, Roy John William Gardiner, Barefoot Science Technologies Inc., Dayl Marie Armstrong and Advanced Barefoot Technologies Inc.

D. MacKenzie for the respondents, Todd Family Holdings Inc. and Future Image Holdings Corporation

Keywords: Tort Law, Deceit, Fraudulent Misrepresentation, Intellectual Property, Share Purchase, Ownership, Control

Facts:

The appellant Gardiner is an inventor. He developed, patented and marketed rehabilitative shoe and insole products through a series of companies, including the appellant, Barefoot Science Holdings Inc. (“Barefoot Holdings”). The appellant Armstrong, is Gardiner’s wife.

Gardiner was looking for investors in 2004. Lance Todd, who had experience investing in and successfully developing businesses, was approached by an associate of Gardiner’s about the possibility of investing in Barefoot Holdings. Based on written material provided to Todd and representations made by Gardiner, Todd decided to invest in Barefoot Holdings. He was also to assume a management position in the company. Todd first advanced slightly over $1,000,000 between May and December 2005. The money was advanced by the respondent corporation, Future Image Holdings Corporation (“Future”). In addition to the loan, Future purchased shares in Barefoot Holdings from Armstrong for $250,000.

Todd’s evidence was that Gardiner represented that Barefoot Holdings owned and controlled the trademarks, patents and other intellectual property (the “IP”) relating to the products sold by Barefoot Holdings. In fact, Todd later learned that Gardiner personally maintained effective control over all of the relevant IP. Todd testified that he would not have advanced funds or purchased shares of Barefoot Holdings had he known that Barefoot Holdings did not own and control the IP, the principal asset underlying the value to the business.

The trial judge identified the elements of the tort of deceit. He went on to consider and accept Todd’s evidence, concluding that: (1) Gardiner effectively represented that Barefoot Holdings owned and controlled the IP; (2) Todd relied on this representation; and (3) Todd would not have made the loan or purchased the shares but for the representation.

Ultimately, the trial judge awarded monetary damages to Future in the amount of $2,217,602.28, all of which were for “deceit/fraudulent misrepresentation”.

On appeal, counsel for the appellants accepts that Barefoot Holdings borrowed money from Future and that the money has not been repaid. Counsel also accepts that Gardiner, and not Barefoot Holdings, controlled the IP through various agreements at the time the funds were advanced by Future. Lastly, counsel accepts that Gardiner’s control of the IP was not disclosed to Todd until well after the advances were made.

Issues:

(1) Did the trial judge err in his finding of deceit as against Gardiner?

(2) Did the trial judge err in his finding of deceit as against Armstrong?

(3) Did the trial judge err in his assessment of damages?

Holding:

Appeal allowed in part.Tthe claim in deceit and fraudulent misrepresentation against Armstrong is dismissed.

Reasoning:

 (1) Did the trial judge err in his finding of deceit as against Gardiner?

No. The court was satisfied that the evidence provided a basis upon which the trial judge could make the findings he did in para. 45 of his reasons, being that any investor would want to know the status of the IP to allow for the viability and success of the enterprise and guarantee the investment, and to provide potential security for the investment if the company failed.. It was fair to say that Todd spoke of “security” in both the general sense, as assets demonstrating that the borrower, Barefoot Holdings, had worth, and in the narrower sense as assets pledged by the borrower as security should the loan fail. However, Todd made it clear that it was significant to him that Barefoot Holdings owned and controlled the assets that were essential to the development of a profitable business. Those assets consisted of the patents, trademarks, and other IP. The court would not interfere with the finding of deceit against Gardiner

(2) Did the trial judge err in his finding of deceit, both as against Armstrong?

Yes. The trial judge said virtually nothing about Armstrong’s involvement in the relevant matters in his reasons. The reasons provide no basis upon which Armstrong could be found liable in deceit. On the court’s review of the record, there is no evidence of Armstrong’s participation in the discussions relevant to the investment in Barefoot Holdings, much less any complicity in the misrepresentations, providing the basis for the findings of deceit.

It was true that the shares purchased by Future for $250,000 were owned by Armstrong. However, her ownership of those shares does not implicate her in the misrepresentations that caused Future to purchase the shares. Those misrepresentations were made by Gardiner. As such, the finding of deceit against Armstrong could not stand.

(3) Did the trial judge err in his award of damages?

Yes. The figure referred to by the trial judge represents the loan advance of slightly over $1,000,000 and the $250,000 advanced to purchase Barefoot Holdings shares. The trial judge went on to make additional monetary awards in favour of Future on the assumption that Future was entitled to enforce the loan agreement which it had entered into as a result of Gardiner’s deceit. The trial judge awarded that $500,000 to Future. Ultimately, the trial judge awarded monetary damages to Future in the amount of $2,217,602.28. All of the damages were awarded for “deceit/fraudulent misrepresentation” (para. 75).

The measure of damages for deceit requires that the injured party be placed in the position it would have been in had the misrepresentation not been made. Damages for deceit are not calculated on the assumption that the injured party is entitled to enforce the agreement entered into as a result of the misrepresentation. Consequently, Future was not entitled, as part of its damage claim for deceit, to claim the $500,000 interest payment required under the terms of the loan.

Future is entitled to the amount it advanced by way of loans and share purchases, being $1,250,640.34

Ranieri v Nagari, 2017 ONCA 336

[Doherty, MacFarland and Rouleau JJ.A.]

Counsel:

M. Ranieri, acting in person

M. Perez, appearing as amicus curiae

J. Blackburn, for the respondent

Keywords: Healthcare Consent Act, Consent and Capacity Board, Capacity to Consent to Treatment, New Issues on Appeal, Fresh Evidence on Appeal

Facts:

While facing a series of criminal charges, the appellant was admitted to St. Joseph’s Health Care Hamilton for an assessment pursuant to s 16 of the Criminal Code to determine whether she was not criminally responsible (NCR). On June 27, 2014, the Ontario Court of Justice found the appellant NCR with respect to the outstanding charges and ordered that she be detained at St. Joseph’s pending disposition by the Ontario Review Board (ORB). On July 7, 2014, the appellant was found incapable with respect to certain psychiatric treatment by Dr. Nagari at St. Joseph’s. That finding was appealed to the CCB decision and that is at issue in the proceeding before the Court.

The appellant remained detained at the secure forensic unit of St. Joseph’s pursuant to a disposition by the ORB. During this time her various appeals, including an appeal from the NCR verdict and an appeal of the CCB decision, were awaiting hearing. On October 20, 2016, the Superior Court allowed the appellant’s appeal of the NCR verdict and ordered a new trial. The court also granted the appellant judicial interim release pending trial. The appellant, however, was not released from the secure forensic unit at St. Joseph’s because she was immediately detained pursuant to a Form 1 application for psychiatric assessment under the Mental Health Act, RSO 1990, c M.7. This was followed by a Form 3 certificate of involuntary admission under the Mental Health Act. She has remained in detention since that date.

The appellant appealed the treatment incapacity finding. The appellant argued first that the appeal is moot, as the incapacity finding under appeal is void, having been made while she was wrongfully detained. This is because the incapacity finding was made while she was detained pursuant to a finding of NCR and that finding has now been set aside on appeal. The appellant also relied on the endorsement of Doherty J.A., made on January 19, 2016, in the course of case management hearings involving the present appeal. In that endorsement, Doherty J.A. noted that the appeal from the finding of incapacity would become moot if the appeal of the NCR finding in the Superior Court is successful.

Issues:

(1) Whether the appeal is moot.

(2) Whether the finding of incapacity respecting treatment with anti-psychotic medication was unreasonable.

(3) Whether the CCB’s decision should be set aside because it, like the NCR finding, was based on inadmissible hearsay.

(4) Whether there is no support for the Board’s decision that the appellant is incapable of consenting to treatment with benzodiazepines and anti-cholinergic medication.

(5) Whether the appellant should be permitted to introduce fresh evidence on appeal.

Holding:

Appeal dismissed.

Reasoning:

(1) The appeal is not moot. The finding of incapacity was made while the appellant was legally detained pursuant to an NCR finding. The fact that the finding was later set aside on appeal does not render unlawful the period of detention while the NCR finding was still legally enforced, nor the finding of incapacity and its independent confirmation by the CCB during the detention. With respect to the statement by Doherty J.A. that the matter would become moot in the event of a successful appeal, that comment was made at a time when it was assumed that if the appeal from the NCR finding was successful, the appellant would be released from detention. It was not anticipated that she would remain detained, this time pursuant to the Mental Health Act rather than the Criminal Code.

(2) The finding of incapacity respecting treatment with anti-psychotic medication was reasonable. The evidence before the CCB established the appellant suffered from a delusional disorder. The CCB provided detailed reasons that fully support its finding that although the appellant could understand relevant information about the various treatments at issue, she was not able to apply it to her own circumstances. The Court of Appeal saw no basis to interfere.

(3) The CCB’s decision should not be set aside on the basis that it relied on inadmissible hearsay. The setting aside of the NCR finding is unrelated to the CCB’s finding. The CCB relied on the evidence presented at the hearing and that evidence, standing alone, fully supported the CCB’s conclusion. In any event, the CCB, unlike a criminal court, can rely on hearsay in making a decision.

(4) Regarding the argument that there is no support for the Board’s decision that the appellant is incapable of consenting to treatment with benzodiazepines and anti-cholinergic medication, this was not raised before the Board, nor does it appear to have been raised before the appeal judge. The Court of Appeal will not generally entertain new issues on appeal save in exceptional circumstances. The Court saw no such exceptional circumstances in this case.

(5) Regarding the request to introduce fresh evidence, the Court of Appeal reviewed the materials and did not consider that they were of any assistance in the determination of the appeal. No proper motion to admit fresh evidence was presented. Even if a proper motion had been brought, the Court would have dismissed it as the proposed evidence did not meet the Palmer test.

Roberts v. Zoomermedia Limited, 2017 ONCA 327

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

T. Weisberg, for the appellant

J. Renihan, for the respondent

Keywords: Employment, Summary Judgment, Severance, Termination Clause, Employment Standards Act, s. 61(1)

Facts:

The respondent was employed as President and CEO of the appellant’s television division. The terms of employment were set out in a fixed term contract dated November 1, 2007 and amended June 11, 2009 (the “Employment Agreement”). The Employment Agreement provided that on the expiry of the fixed term on October 31, 2011, the respondent would be entitled to a lump sum severance payment, equivalent to two year’s salary, as well as a 6-month paid sabbatical to be arranged by the appellant and begin on November 1, 2011 or another mutually agreed date.

Despite attempts at renegotiation as the Employment Agreement drew to expire, no agreement was reached.  On October 31, 2011, the Employment Agreement expired. However, the respondent continued after this date as a common law employment relationship.

The parties did not make arrangements for the respondent’s sabbatical. Over the course of the post-expiry negotiations, the appellant refused to make the severance payment, and took the position that the respondent had waived his entitlement to a sabbatical.

Negotiations broke down. On March 1, 2012, the appellant gave notice that it was terminating the respondent’s employment, effective October 31, 2012. The respondent was given 8-months working notice, and a 2-month severance package. The appellant took the position that the respondent was not entitled to the 2-year severance payment or the sabbatical provided under the Employment Agreement.

The respondent brought an action for breach ofthe Employment Agreement, and moved for summary judgment. The motion judge found the appellant liable to pay the respondent damages for the 2-year severance payment ($490,000) and for payment in lieu of the sabbatical ($150,000).

Issues:

(1) Did motion judge err in failing to find that the respondent had waived his entitlement to a sabbatical under the Employment Agreement?

(2) Did motion judge err in failing to find that the severance provision of the Employment Agreement was invalid?

Holding:

Appeal dismissed.

Reasoning:

(1) The motion judge correctly rejected the argument that over the course of the pre-expiration negotiations to extend the Employment Agreement, the parties reached an agreement that the respondent would forego his entitlement to the sabbatical. The respondent may have been willing, in the course of negotiations towards a new employment contract, to forego the sabbatical, but the appellant could not convert a provisional bargaining position into a valid waiver.

(2)The Court rejected the appellant’s argument that because the termination clause of the Employment Agreement did provide the respondent with all of his statutory entitlements under s. 61(1) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) ― entitlements that were conditional on an early termination, an event which never occurred ― the respondent must therefore forfeit his other contractual entitlements, which were far greater than what either the ESA or the common law would have provided. This would be a perverse application of a statute that is intended to protect the interests of employees. The motion judge was correct to give this argument no effect.

Abernethy v. Ontario, 2017 ONCA 340

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

Joan Abernethy, acting in person

C. Vernon, for the Crown respondents

M. K. Robb and C. Malcolm, for the respondent St. Joseph’s Heathcare (Hamilton) Director, East Region Mental Health Services, Judith Santone

Keywords: No Reasonable Cause of Action, Rule 21.02(1)(b) of the Rules of Civil Procedure, Frivolous and Vexatious Claims, Rule 25.11 of the Rules of Civil Procedure, Crown Immunity, Jones v. Tsige, Judicial Bias, S. L. v. Marson

Facts: Justice Gonsulos struck out, without leave to amend, claims in the appellant’s Fresh as Amended Statement of Claim against the “Crown Defendants” (four Crown Attorneys, the Ontario Independent Police Review Director, and an investigator with the Ontario Civilian Police Commission), and dismissed the action, The Order was made pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure on the basis that the pleading did not disclose any reasonable cause of action against the Crown defendants, as well as rule 25.11, on the basis that the claims were frivolous and vexatious as they lacked the material facts necessary to support them.

The appellant’s claims against the remaining defendant, Judith Santone, were struck, but leave was granted to amend the claim to pursue the tort of breach of privacy.  The motion judge concluded there may be reasonable basis for the tort under Jones v. Tsige, 2012 ONCA 32, 108 OR (3d) 241.

The appellant commenced the action in December 2012. Her pleading set out events taking place from 1970 to 2011. The Fresh as Amended Statement of Claim is long and rambling. The appellant claimed damages of $8,400,000 arising out of a multitude of complaints about her allegedly treatment by state officials in the justice and health care systems. The claims included conspiracy, misfeasance of public office, breach of trust, intentional infliction of mental distress, obstruction of justice, intentional Charter and statutory violations, false arrest, false imprisonment and fabricating evidence.

Issues: Did the motion judge err in striking the Fresh as Amended Statement of Claim?

Holding: Appeal dismissed.

Reasoning:

After reviewing the relevant principles relating to the striking of pleadings and reading the pleading as generously as possible in favour of the plaintiff, the motion judge concluded that the claims against the Crown Defendants and Santone disclosed no reasonable cause of action and it was plain and obvious they could not succeed. The Crown Defendants were protected by Crown immunity under the Ministry of the Attorney General Act, RSO 1990, c. M. 17, s. 8, by common law Crown immunity, and under the Police Services Act, RSO 1990, c. P. 15, ss. 21(9) and 26.1(12).

A cause of action is not “disclosed” simply by naming it. The claims must be supported by more than a bald and conclusory narrative. They must be supported by a set of material facts that would establish the claim if they were to be proved.

Given that the appellant had already been provided with an opportunity to correct her pleading, the motion judge declined further leave to amend, observing that “pleadings are not meant to be a moving target”. This was a discretionary decision and the Court of Appeal saw no basis to interfere.

Finally, the appellant alleged that the motion judge was biased in arriving at his decision. There is a strong presumption of judicial impartiality and a heavy burden on a party seeking to rebut the presumption: S. L. v. Marson, 2014 ONCA 510, 121 OR (3d) 369. The court found nothing in the record or reasons to suggest bias.

J.K. v. Ontario, 2017 ONCA 332

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

Counsel:

H. Burnett and J. Sydor for the moving party

K. M. Baert and J. Sayce for the responding party

Keywords: Endorsement, Motion to Quash Appeal, Interlocutory Order, Class Action, Youth Records,

Facts:

J.K. is the representative plaintiff in a proposed class proceeding brought against Her Majesty the Queen in Right of the Province of Ontario (“HMQ”) on behalf of “all persons who were/are detained and/or incarcerated at one of the [youth detention centres] from January 1, 2007 to the present and were placed in secure isolation while under the age of 18.” He was at various times detained at three different youth detention centres.

The Crown sought to cross-examine J.K., and to obtain production of a variety of what are described as “Youth Records” under the Youth Criminal Justice Act, S.C. 2002, c.1. J.K., however, refusd to produce the documents on the basis that the Superior Court does not have jurisdiction to order him to produce the documents because of s. 118 of the Youth Criminal Justice Act, which prohibits access to Youth Records unless authorized under that Act.

The motion judge was satisfied that the Crown had “shown the relevance of its request for Youth Records.” The only exception among the requested records was J.K.’s CPIC record, which he concluded would offer “little relevant information.” The motion judge was further satisfied that he was not precluded by the Youth Criminal Justice Act from directing a litigant before him to make an application to the Youth Justice Court. A conclusion on the propriety of that determination is not necessary for the disposition of this motion to quash.

The formal order stated: THIS COURT ORDERS that this action shall be stayed unless the Plaintiff produces the following Youth Records: [thereafter follows a listing of the records ordered produced]

Issue: Was the motion judge’s order interlocutory or final?

Holding:

Appeal dismissed.

Reasoning:

The order in question is interlocutory, and any appeal lies to the Divisional Court with leave. Courts long have repeated the mantra that originated in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.): The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties—the very subject matter of the litigation, but only some matter collateral.

To suggest that the order in issue is anything more than a production order with a sanction in the event of non-compliance would be to put form over substance.

The order was made in the context of a production motion brought within the motion for certification. What was sought was a declaration that the Youth Records were necessary for the fair determination of the certification motion and that the plaintiff be required to produce them. That was the substance of the motion; it was not a motion for a stay of proceedings. The stay was to be imposed only if the Youth Records were not produced.

Civil Endorsements

Hunks v. Hunks, 2017 ONCA 331

[Gillese, MacFarland and Pepall JJ.A.]

T. Zimmerman, for the appellant

P. Alan R. Giles, for the respondent

Keywords: Cost Endorsement, Costs, Judicial Discretion, Rules of Civil Procedure, Rule 49

Royal Bank of Canada v. Ibrahim, 2017 ONCA 330

[Hoy A.C.J.O., Blair and Hourigan JJ.A.]

J. D. Buote and D.Baker, for the appellant

V. Rampersad, for the respondent

Keywords: Endorsement, Contracts, Debtor-Creditor,  Summary Judgement,  Evidence Act, R.S.O. 1990, s. 35(3), Courts of Justice Act

Bimman v. Neiman, 2017 ONCA 338

[Juriansz, Brown and Miller JJ.A.]

I. Ellyn, Q.C. and E. S. Perez-Youssoufian, for the appellants/respondents by way of cross-appeal

D. A. Shiller and J. T. Curry, for the respondents/appellants by way of cross-appeal

Keywords: Cost Endorsement

Elsley v. IP Trust, 2017 ONCA 341

[Feldman, Sharpe and Roberts JJ.A.]

F. Hawa, for the appellant

M. Abradjian and R. Kis, for the respondent

Keywords: Endorsement, Proper Plaintiff, Evidence, Summary Judgement

K.R. v. M.R., 2017 ONCA 339

[Blair, Juriansz and Miller JJ.A.]

J. J. Avery, for the appellant

No one appearing for the respondent

Keywords: Publication Ban, Endorsement, Overriding and Palpable Error, Borowski v. Canada (Attorney General)

Lexfund Inc. v. Ferro, 2017 ONCA 344

[Simmons, Juriansz and Miller JJ.A.]

N. Abbott, for the appellant

M. Grosso and R. J. Hooper, for the respondents Sherryl Chrysler, David Tucker, Cindy Daly, Matthew Cuffy and Bernard Serieux

W. G. Scott and J. Van Allen, for the respondents Lucio Anthony Ferro a.k.a. Lou Ferro and Ferro & Company

Keywords: Endorsement, Consolidated Actions, Courts of Justice Act, Section 110, Jurisdiction, Divisional Court

Criminal Decisions

R. v. Fortunato, 2017 ONCA 328

http://www.ontariocourts.ca/decisions/2017/2017ONCA0328.pdf

[MacPherson, Simmons and Brown JJ.A]

Counsel:

G. Lafontaine, for the appellant

D. Friesen, for the respondent

Keywords: Endorsement, Criminal Law, Fraud over $5,000, Uttering Forged Documents, Evidence, Defence of Honest but Mistaken Belief, Mens Rea, Doctrine of Recent Possession, Exculpatory Statements

R. v. Lam, 2017 ONCA 329

[MacPherson, Simmons and Brown JJ.A.]

Counsel:

J. R. Presser and J. A. Marshman, for the appellant, Bryan Quoc Ton Lam

D. E. McCabe-Lokos, for the appellant, Thanh Hien Tran

M. C. Martin, for the appellant, Wali Seddiqi

M. Macchia, for the appellant, Ba Tuan Tran

B. C. Eberdt, for the appellant, David Hoc Truong

K. Robert Wilson, for the respondent

Keywords: Criminal Law, Conspiracy to Traffic in Marijuana, Possession of Proceeds of Crime over $5,000, Police Misconduct, Canadian Charter of Rights and Freedoms, s. 24(2), Criminal Code, s. 551.1, Custodial Sentence

R. v. J. N-Z., 2017 ONCA 335

[MacPherson, Simmons and Brown JJ.A]

M. R. Gourlay, for the appellant

B. Cohen, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Misconduct, Evidence, Credibility

R. v. Ryan, 2017 ONCA 334

[MacPherson, Simmons and Brown JJ.A.]

M. Salih, for the appellant

J. McKee, for the respondent

Keywords: Criminal Law, Aggravated Assault, Breach of Probation, Long-Term Offender, Criminal Code, s. s. 753.1, Pre-Sentence Custody

R. v. Speers, 2017 ONCA 333

[LaForme, Epstein and Huscroft JJ.A.]

R. Speers, acting in person

B. Snell, appearing as duty counsel

M. Fawcett, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Evidence, Credibility, Jury Charge, R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.)

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.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s