ONTARIO COURT OF APPEAL SUMMARIES (JULY 17 – 21, 2017)

Good afternoon,

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

In Rainy River (Town) v. Olsen, the mayor of the town was unsuccessful, both in the court below and in the Court of Appeal, in getting an injunction against the respondent preventing him from defaming and harassing the mayor and other court staff. No finding of defamation was made, and therefore no injunction order restraining defamation could be made.

In Duff v. James, a family law decision, the Court held that the application judge in this case had the authority to impose obligations on the OPP to enforce a child custody order where the father was a member of the local police force and an inherent conflict of interest arose if his colleagues on the local force were asked to enforce the order.

Other topics covered include costs in guardianship matters, vexatious litigants, and MVA.

Have a great weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416 593 2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

Civil Decisions

Rainy River (Town) v. Olsen, 2017 ONCA 605

Keywords: Torts, Defamation, Employment Law, Occupational Health and Safety, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Remedies, Injunctions

Duff v. James, 2017 ONCA 606

Keywords: Family Law, Custody and Access, Orders, Enforcement, Police, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, ss. 12 & 36(2), Police Services Act, s. 9(2)

D’Ascenzo v. Nichols, 2017 ONCA 604

Keywords: Contracts, Damages, Restitution, Pre-judgment Interest, Post-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128 and 129

Ontario (Attorney General) v. Reyes, 2017 ONCA 613

Keywords: Civil Procedure, Vexatious Litigants, Stay of Order, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.)

Jaffer v. Pardhan, 2017 ONCA 612

Keywords: Torts, Negligence, MVA, Statutory Liability, Owners, Underinsured Motorists, Highway Traffic Act, s. 192(2), Fresh Evidence

Childs v. Childs, 2017 ONCA 608

For Criminal Decisions, click here.

Civil Decisions

Rainy River (Town) v. Olsen, 2017 ONCA 605

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

A.D. McKitrick, for the appellant

No one appearing for the respondent

Keywords: Torts, Defamation, Employment Law, Occupational Health and Safety, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Remedies, Injunctions

Facts:

The Town of Rainy River and its mayor, Deborah Ewald, brought an application to stop the respondent, Paul Olsen, from continuing to harass and defame the mayor, members of Town council, and staff. The application was brought under R. 14.05(3)(h) of the Rules of Civil Procedure. There were no facts in dispute since Mr. Olsen declined to participate and the only evidence before the application judge was provided by representatives of the Town. However, the application judge refused to grant any of the relief sought.

Issues:

(1) Did the application judge err in refusing to issue a declaration that Mr. Olsen’s conduct breached the Town’s “Violence Free in the Workplace Policy” and the “Harassment Policy” under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “Act”), on the basis that the Town has a duty to protect its workers under the terms of the Act?

(2) Did the application judge err in refusing to issue a permanent injunction restraining Mr. Olsen from making “in any manner whatsoever directly or indirectly, any statements or comments about Deborah Ewald or any other town councillor, employee or agent that are defamatory and/or made with malice or ill-will”?

(3) Did the application judge err in not addressing the appellant’s order that sought to restrain Mr. Olsen from maintaining or purporting to maintain, without permission or authority from the Town, any Town property, including any municipal streets, sidewalks and road allowances?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. The application judge held that neither the Act nor the Town’s policy under it had any application to Mr. Olsen, since the harassment occurred outside the workplace and Mr. Olsen was not a worker or co-worker as defined by the Act. The Court of Appeal saw no error in this determination.

(2) No. The application judge pointed out that a permanent injunction would have been appropriate if there had been a verdict of defamation or a final judgment in defamation: Astley v. Verdun, 2011 ONSC 3651 at para 21.

However, such injunctions are not at large, as the appellants sought in this case, but are invariably linked to a finding that defamation has occurred: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para 78; Astley, at para 35; Ottawa-Carleton District School Board v. Scharf, [2007] O.J. No. 3030 (S.C.), at para 30, aff’d 2008 ONCA 154, leave to appeal ref’d, [2008] S.C.C.A. No. 285.

A broad ongoing injunction is an extraordinary remedy which should be used sparingly: St. Lewis v. Rancort, 2015 ONCA 513 at para 16, leave to appeal ref’d, [2015] S.C.C.A. No. 407, The appellants did not seek a declaration that Mr. Olsen had defamed the mayor or anyone else, and the application judge did not make such a finding. Therefore, the Court of Appeal saw no error in the application judge’s refusal to issue a permanent injunction regarding defamatory speech.

(3) Yes. The evidence justified this relief and the application judge erred in not addressing it directly.

Duff v. James, 2017 ONCA 606

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

V. Torrance, for the appellant/respondent, Waterloo Regional Police Service

C. Diana and L. Donnelly, for the appellant/respondent, Ontario Provincial Police

No one appearing for the respondents, Shirley Diana Duff and Mark Alexander James

S. Dewart and M. Thomarat, appearing as amicus curiae

Keywords: Family Law, Custody and Access, Orders, Enforcement, Police, Children’s Law Reform Act, R.S.O. 1990, c. C. 12, ss. 12 & 36(2), Police Services Act, s. 9(2)

Facts:

The order that is the subject of these appeals arose out of a high conflict custody dispute between a father and mother. The motion judge found that the police force that would ordinarily be called upon to enforce the order, the Waterloo Regional Police Service (“WRPS”), had an inherent conflict of interest and therefore was not able to assist because the father was a member of the WRPS.

In 2015, the mother brought a contempt motion following the father’s failure to deliver the child to her custody. The motion judge found that officers of the WRPS had interfered with the exchange of the child from the father to the mother. The motion judge’s order granted the following police assistance provision:

This Court orders, pursuant to Section 36 of the Children’s Law Reform Act, that the Ontario Provincial Police, having jurisdiction where the said child may be found, is hereby directed to locate, apprehend and deliver the child to the parent entitled to custody or access in accordance with this Order, which direction shall remain in effect until further order of this Court.

The parties respected the custody and access schedule and neither had needed to resort to the Ontario Provincial Police (“OPP”) for assistance. On April 28, 2016, the OPP brought a motion to vary the police assistance provision in the order, so that the OPP would no longer be the police service designated. It was supported in this by the WRPS.

The motion judge refused to vary the order because of the WRPS’ inherent conflict of interest. The motion judge also held that where the best interests of a child are at stake, and where there is a legislative gap, the court has parens patriae jurisdiction to craft a remedy. Accordingly, the motion judge ordered the OPP to provide the needed assistance. The OPP and WRPS each appealed.

The OPP argued that it is the Ontario Civilian Police Commission (OCPC), and not the Superior Court, that is assigned supervisory jurisdiction and can determine that a municipal police force has failed to provide adequate or effective policing and, in such circumstances, can request the OPP to assist, per s. 9(2) of the Police Services Act.

Issues:

(1) Did the motion judge have the authority to impose an obligation on the OPP to enforce the police assistance provision?

(2) Did the motion judge err in relying on his parens patriae jurisdiction as a possible basis for the order that he made?

(3)  Did the motion judge’s order extend the involvement of the OPP further than necessary?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. The powers conferred on the OCPC by the Police Services Act do not contemplate the OCPC dealing with, or remedying, the kind of case-specific problem posed by this case.

The motion judge’s order was authorized by the plain language of s. 36(2) of the Children’s Law Reform Act:

Where a court is satisfied upon application that there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;

the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.

The OPP is a police force having “jurisdiction to maintain the peace and enforce the laws” in Waterloo Region: Foster v. ADT Security Services Canada Inc., 2007 ONCA 653 at para 3. Section 36(2) is not premised on there being a single police force with exclusive jurisdiction in any territory.

(2) Not decided. The power conferred by s. 36(2) is broad enough to permit a judge to order assistance from any police force, including the OPP that has jurisdiction in a given area. Accordingly, there is no legislative gap, and the Court of Appeal did not find it necessary to address the issue of parens patriae.

(3) Yes. By specifying that the OPP is the police force “having jurisdiction where the said child may be found”, the order extended the involvement of the OPP further than necessary. Should the child happen to be in another region, outside the territory of the WRPS, there is no reason why the OPP should be preferred over the municipal force in that region. Although the order expired and the appeal was moot, it would have been preferable for the order to have provided that the OPP would only be required to provide assistance if the child was to be found within the region policed by the WRPS.

D’Ascenzo v. Nichols, 2017 ONCA 604

[MacPherson, Cronk and Benotto JJ.A.]

Counsel:

M. Boire, for the appellant/respondent by way of cross-appeal

J. Laberge and M. Ranaivoson, for the respondents

Keywords: Contracts, Damages, Restitution, Pre-judgment Interest, Post-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128 and 129

Facts:

In 2006, the respondents sought to purchase from the appellant (a) the appellant’s shares in 1702620 Ontario Inc., (b) the Petting Zoo vacant land, and (c) the Lot 511 vacant land. The Share Purchase Agreement included the terms by which the appellant was to sell the Petting Zoo and Lot 511 to the respondents. However, the appellant did not take the required steps to have Lot 511 severed pursuant to the Planning Act, R.S.O. 1990, c. P.13. No mortgage was ever registered on title to either property. The share purchase transaction closed on November 24, 2006.

Since the closing, as of January 2013, the respondents made payments to the appellant towards the purchase of the Petting Zoo and Lot 511 totalling $168,727. The respondents did not make any further payments after January 2013. After that point, the respondents demanded clear title to the Petting Zoo because they alleged they had paid for it in full, and said they would pay the remaining $27,500, owing for Lot 511, when the appellant cleared up the title issues relating to the severance of that property.

The appellant refused to convey title to the Petting Zoo and informed the respondents that he was “foreclosing” on Lot 511. The respondents commenced an action and brought a motion for summary judgment, which was granted, in part. The motion judge ordered rescission and damages with respect to one of the properties (the Petting Zoo), and issued a certificate of pending litigation with respect to the other property (Lot 511), pending a trial of the issue of specific performance, which involved the issue of the granting of a severance of the two properties.

The appellant sought to overturn the motion judge’s decision on the basis that the respondents defaulted on their debt obligation and therefore forfeited their interest in both properties. In the alternative, the appellant sought to vary the judgment and alleged that the motion judge erred in determining the appropriate remedies for both properties.

The Court of Appeal dismissed the appeal in this case by reasons dated July 6, 2017 (https://blaneyscourtsummaries.com/2017/07/07/ontario-court-of-appeal-summaries-july-4-july-7-2017/#13). The respondents raised four discrete and relatively minor issues on cross-appeal.

Issues:

(1) Did the motion judge err by denying the return of any interest paid relating to the Petting Zoo based on a finding that the interest was paid to delay the closing?

(2) Did the motion judge err in calculating the principal owed to the respondent?

(3) Did the motion judge err in not granting prejudgment interest on damages awarded for the Petting Zoo?

(4) Did the motion judge err by not dealing with and awarding $1,955.03 representing the amount paid by the respondents for municipal property taxes on the Petting Zoo?

Holding: Appeal allowed with respect to issues (1), (3), and (4), and appeal dismissed with respect to issue (2).

Reasoning:

(1) Yes. The Court of Appeal found that the respondents were entitled to restitution of the interest paid. It was the appellant who committed the pivotal breach of the contract, and the interest was to be paid, whether the closing was delayed or not, because it was a component of the original purchase price.

(2) No. The Court of Appeal found no error in the motion judge’s calculation.

(3) Yes. The Court of Appeal found that the respondents were entitled to prejudgment interest by virtue of s. 128(1) of the Courts of Justice Act. The Court noted that the motion judge awarded prejudgment interest with respect to the Lot 511 issue, and stated that it was likely just an oversight that the judge did not make a similar order with regard to the Petting Zoo.

(4) Yes. Since the taxes were paid by the respondents with a view to an eventual closing of the sale of the property, the respondents are entitled to a return of the money, together with pre- and post-judgment interest, in light of the failure to close.

Ontario (Attorney General) v. Reyes, 2017 ONCA 613

[B.W. Miller J.A. (In Chambers)]

Counsel:

Althea Reyes, in person

D. Polla, for the respondent, Attorney General of Ontario

K. Arora, for the respondent, The Office of the Children’s Lawyer

Keywords: Civil Procedure, Vexatious Litigants, Stay of Order, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.)

Facts:

The moving party, Reyes, was subject to a vexatious litigant order made by Perell J, the terms of which put constraints on her ability to commence or continue legal proceedings. Specifically, she cannot commence or continue any proceedings in Ontario without first obtaining leave from a judge of the Superior Court of Justice, pursuant to s. 140(3) of the Courts of Justice Act. The process for obtaining leave is expressly provided in rule 38.13 of the Rules of Civil Procedure, which provides that an application under s. 140(3) is to be heard in writing without the attendance of the parties, unless the Court orders otherwise.

She appealed the vexatious litigant order to the Court of Appeal by right. That appeal had not yet been heard at the time of this decision, and in the interim, she wished to obtain a stay of the order. She subsequently filed motion materials with the Court of Appeal seeking a stay of the order. The Court Registry advised her that although it would hold the materials in abeyance, she would be required to obtain leave from a judge of the Superior Court before the motion could be heard in the Court of Appeal.

Ms. Reyes failed to bring that application for leave under rule 38.13. She instead brought a motion in the ordinary course both for leave and for the stay itself. Lederer J. denied the motion, and concluded that it was an abuse of process for Reyes to have sought a stay from both the Superior Court of Justice and the Court of Appeal.

Issues:

(1) Did the motion judge err in dismissing Reyes’ motion for a stay of the vexatious litigant order?

Holding: Appeal dismissed.

Reasoning:

(1) No. The leave motion ought to have been brought in writing, pursuant to rule 38.13(2). The failure to follow rule 38.13 was more than a failure to comply with a formality, as it circumvented a process designed to protect other litigants by putting them to the time and expense of an oral hearing. Failure to observe the prescribed process is not an irregularity which ought to be cured by rule 2.01.

Decisively, s. 140(4) of the Courts of Justice Act provides that “no appeal lies from a refusal to grant relief to the applicant” from a refusal by a judge of the Superior Court of Justice to grant leave to institute or continue a proceeding in any Court. Accordingly, no appeal from Lederer J.’s decision was available.

Reyes also argued that notwithstanding s. 140(4), the Court of Appeal could nevertheless hear her motion for a stay under s. 106 of the Courts of Justice Act. The Court of Appeal described her rationale as follows: if leave is not required to appeal a vexatious litigant order – because of the risk of fundamental unfairness if the order was granted in error – then neither should leave be necessary to seek an interim stay of that order pending the appeal. The same risk of unfairness from an order made in error hovers over them both.

The Court of Appeal rejected this argument, holding that a vexatious litigant order is presumptively correct and strikes a balance between safeguards for the vexatious litigant and protection for other litigants. Although there is some risk of unfairness to the applicant should it later be determined that the order was made in error, the risk of unfairness is nevertheless temporarily contained to the period of time up until the decision of the appeal. The risk of unfairness is further limited by the opportunity to seek leave in the Superior Court to bring the motion for a stay.

Were it to be otherwise, and a motion for a stay was available as of right, a vexatious litigant would be able to command two additional oral hearings: one for the stay motion and another for an appeal if the stay motion were unsuccessful. This would put opposing parties to further expense, contrary to the purpose of s. 140.

Jaffer v. Pardhan, 2017 ONCA 612

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

I. Furlong, for the appellants

B. Haynes and B. Lee, for the respondent

Keywords: Torts, Negligence, MVA, Statutory Liability, Owners, Underinsured Motorists, Highway Traffic Act, s. 192(2), Fresh Evidence

Facts:

The appellant appeals a summary judgment dismissing her claim against herself for statutory vicarious liability as the owner of the vehicle involved in an accident in which she suffered a personal injury. The appellant’s claim is based on the deemed statutory liability imposed by the Highway Traffic Act on the owner of the vehicle. The appellant was a passenger in the vehicle she owned that was being driven with her consent by her daughter at the time of the accident. The motion judge granted summary judgment dismissing the claim on the ground that the accident did not occur on a “highway” as defined in the Act and that accordingly s. 192(2) of the Act had no application. The appellant seeks to introduce fresh evidence indicating that the accident occurred at the Unionville GO Station parking lot and that, as the parking lot and the laneway are used by the general public, there is a triable issue as to whether the Act applies.

Issues:

(1) Did the judge err in dismissing the claim by way of summary judgment?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court held that the motion to admit fresh evidence had to be dismissed. First, it was inconsistent with the position taken by the appellant in her statement of claim. Second, the evidence clearly could have been available at the time the motion for summary judgment was heard. Third, the appellant did not bring the proposed fresh evidence forward by following the prescribed procedure of bringing a motion to adduce fresh evidence but rather simply included the affidavits relied on in the Exhibit Book. Finally, the court found that given the involvement of the two fully insured defendants, the fact that the appellant attempted to sue herself, and the availability of underinsured coverage, it was difficult to see how the appellant would suffer any practical prejudice from having the claim dismissed.

Childs v. Childs, 2017 ONCA 608

[Gillese, Huscroft and Trotter JJ.A.]

Counsel:

P. Childs and C. Childs, in person for the appellants

M. Childs and A. Childs, in person for the respondents

Keywords: Wills and Estates, Guardianship, Costs

Facts:

This endorsement arose out of a dismissed review motion where the parties were invited to make written submission on costs. The facts underlying this case involved the issue of whether the appellant child of an incapable woman with dementia, Eileen Childs, should be awarded damages for providing care to her mother.

The respondents sought costs of approximately $50,000 on a full indemnity basis with all outstanding costs to be paid by BMO Trust Company as guardians of property for Eileen Childs, and Eileen Childs’ estate on her death. The appellants disagreed with the respondents on the basis that Eileen Childs benefited greatly from their care, and asked that costs be paid wholly by Eileen Childs’ estate on her death.

Issues:

(1) Should costs be wholly paid from Eileen Childs’ estate on her death?

Holding: Appeal dismissed.

Reasoning:

(1) No. There is no reason to depart from the normal practice of awarding costs on a partial indemnity basis to the successful party. The respondents are to be awarded $24,400 paid by BMO Trust Company as guardians of property for Eileen Childs, to be offset against any inheritance that the appellants are entitled to upon Eileen Childs’ death.

Criminal Decisions

R. v. Agresta, 2017 ONCA 603

[Hoy A.C.J.O, Simmons and Brown JJ.A.]

Counsel:

A. Ohler, for the appellant

A. Agresta, appearing in person

P. Fraser, for the respondent

Keywords: Criminal Law, Fresh Evidence, Criminal Code, s. 606

R. v. Boast, 2017 ONCA 602

[Hoy A.C.J.O., Simmons and Brown JJ.A.]

Counsel:

M. Dineen, for the appellant

C. Boast, appearing in person

J. Epstein, for the respondent

Keywords: Criminal Law, Intimidation, Criminal Code, s. 423(1)(b)

R. v. Gamble (Appeal Book Endorsement), 2017 ONCA 610

[Hoy A.C.J.O., Simmons and Brown JJ.A.]

Counsel:

E. Rondinelli, for the appellant

R. Gamble, appearing in person

M. Bernstein, for the respondent

Keywords: Criminal Law, Sentencing

R. v. Douglas, 2017 ONCA 609

[Hoy A.C.J.O., Simmons and Brown JJ.A.]

Counsel:

K. Douglas, acting in person

A. Ohler, appearing as duty counsel

T. Gilliam, for the Crown

Keywords: Criminal Law, Possession, Evidence, Witnesses

R. v. Husbands, 2017 ONCA 607

[LaForme, Watt and Trotter JJ.A.]

Counsel:

D. Derstine & S. DiGiuseppe, for the appellant

A. Alvaro, for the respondent

Keywords: Criminal Law, Jury Selection, Criminal Code, s. 640(2.1)

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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