ONTARIO COURT OF APPEAL SUMMARIES (MARCH 19 – MARCH 23)

Good evening.

It has been a busy week at the Court of Appeal and a notable one at our office. I would first like to congratulate Varoujan Arman and Megan Hodges of our office, who successfully responded to an appeal on behalf of our client in V. Melfi Holdings Ltd. v. Dourada Investment Inc. In that case, Dourada purchased an industrial warehouse from Melfi, who was permitted to remain in a portion of the premises as Dourada’s tenant for a limited period of time in order to remove a substantial amount of scrap metal, equipment, and debris that occupied the premises. Melfi eventually failed to pay rent and stopped attending the premises altogether, however it refused to dispose of the scrap material and debris that it had left behind despite repeated demands by Dourada. After a long period of negotiation, the locks were changed and Dourada sold what it could in order to mitigate its damages and recover arrears of rent.

Dourada was successful on its summary judgment motion in obtaining judgment for arrears of rent and damages for Melfi’s breach of its covenant pursuant to the agreement of purchase and sale to leave the premises empty and in “broom-swept condition”. Melfi appealed from the summary judgment decision, alleging that, among other things, the motion judge had erred in finding that Melfi’s failure to remove its goods constituted abandonment. The Court of Appeal found that the motion judge made no errors and that his factual findings were available to him on the evidence. Accordingly, Melfi’s appeal was dismissed.

In Reeves v. Brand, 2018 ONCA 263, our new family lawyer, Ryan Kniznik, represented a mother in a contested relocation and custody application. This was a decision involving important principles of general application to determinations of child relocation or mobility, an area, which Laskin J.A. noted was “among the most difficult cases in family law”. Ryan notes that Laskin J.A., on behalf of the panel, discussed the concepts of maximum contact, disruption to the child, and the parent’s reasons for moving, within the context of a parent’s request to move a child some distance away from the other parent.  The decision provides a nuanced analysis with respect to maximum contact, in that there has to be a reasonable application of this principle.  Further, the decision, under the disruption factor, noted that children are adaptable to change, and the disruption to a younger child is likely less significant than an older child.  The decision is important to review and consider when grappling with a mobility or relocation case.

In Brown v. Woodstock (Police Services Board), the Court applied its recent decision in Winmill v. Woodstock (Police Services Board), confirming that claims of battery against the police are discoverable after mirror image criminal charges against a plaintiff are dismissed or withdrawn. Until then, suing is not an “appropriate means” of seeking a remedy within the meaning of ss. 5(1)(a)(iv) of the Limitations Act, 2002.

Finally, in 2363523 Ontario Inc. v. Nowack, Justice Brown lamented an apparent increase in motions seeking panel reviews of decisions made by single judges of the Court of Appeal. In the past the Court has lamented the difficulty in sometimes determining appeal routes and whether an order is final or interlocutory. Hopefully, MAG will review the Courts of Justice Act and the Rules as they relate to appeals and introduce some much-needed fine-tuning.

Other topics covered this week included seeking intervener status in an environmental contamination case, automobile insurance, MVA jury trials, motions for summary judgment in the class action context, breach of confidence, family law, bankruptcy and insolvency and solicitors’ liens and charging orders.

I wish everyone a happy and safe start to the Spring.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

Table of Contents

V. Melfi Holding Ltd. v. Dourada Investment Inc., 2018 ONCA 290

Keywords: Real Property, Commercial Leases, Default in Payment of Rent, Abandonment of Property, Improvident Sale, Damages, Mitigation

Reeves v. Brand, 2018 ONCA 263

Keywords: Family Law, Child Custody, Relocation, Best Interests of the Child, Costs

Bracken v. Niagara Parks Police, 2018 ONCA 261

Keywords: Constitutional Law, Canadian Charter or Rights and Freedoms, Section 2(b), Freedom of Expression, Property Law, Trespass, Provincial Offences, Disturbing Others, Using Abusive or Insulting Language, Provincial Offenses Act, R.S.O. 1990, c. P.33, Niagara Parks Act, R.S.O. 1990, c. N. 3, R. v. Batty, 2011 ONSC 6862

A.C. Concrete Forming Ltd. v. JAC Concrete Structures and  Drain Inc., 2018 ONCA 272

Keywords: Contracts, Oral Agreements, Civil Procedure, Offers to Settle, Enforcement, Summary Judgment, Rules of Civil Procedure, Rules 20 and 49

Ligaj v. Ismail, 2018 ONCA 271

Keywords: Torts, Negligent Entrustment, Insurance Law, Automobile Insurance, Uninsured Motorists, Driving with Consent of Owner

Barker v. Barker, 2018 ONCA 255

Keywords: Torts, Battery, Negligence, Breach of Fiduciary Duty, Civil Procedure, Class Actions, Summary Judgment, Procedural Fairness, Limitation Periods, Laches, Statutory Interpretation, Retroactivity, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 16(1)(h.2)

Dunk v. Kremer, 2018 ONCA 274

Keywords: Torts, Negligence, MVA, Civil Procedure, Expert Reports, Rules of Civil Procedure, Rule 53, Jury Trials, Closing Address, Damages

Pey v. Pey, 2018 ONCA 284

Keywords: Family Law, Orders, Support, Enforcement, Striking Motions, Committal for Non-Payment, Family Responsibility Office

Weenen v. Biadi, 2018 ONCA 288

Keywords: Contracts, Solicitor and Client, Unpaid Legal Fees, Charging Orders, Solicitors’ Liens, Solicitors Act, R.S.O. 1990, c. S.15, s. 34, Appellate Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 13(2) and 134(1)

The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283

Keywords: Torts, Breach of Confidence, Spoliation, Costs, Substantial Indemnity

2363523 Ontario Inc. v. Nowack, 2018 ONCA 286

Keywords: Civil Procedure, Extension of Time, Security for Costs, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Courts of Justice Act, R.S.O. 1990, c. C.43, to ss. 7(5), Rules of Civil Procedure, R. 61.16(6).

Brown v. Woodstock (Police Services Board), 2018 ONCA 275

Keywords: Torts, Battery, Wrongful Arrest, Unlawful Search and Seizure, Wrongful Detention, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, s. 5(1), Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

Huang v. Fraser Hillary’s Limited, 2018 ONCA 277

Keywords: Torts, Nuisance, Trespass, Negligence, Strict Liability (Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (U.K. H.L.)), Environmental Contamination, Environmental Protection Act, R.S.O. 1990, s. 99, Civil Procedure, Interveners, Rules of Civil Procedure, Rule 13.02, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.)

For Short Civil Decisions click here

For Ontario Review Board Decisions click here

For Criminal Decisions click here

 

V. Melfi Holding Ltd. v. Dourada Investment Inc., 2018 ONCA 290

Sharpe, Juriansz and Miller JJ.A.

D. Saverino, for the appellant

Varoujan Arman and Megan Hodges, for the respondent

Keywords: Real Property, Commercial Leases, Default in Payment of Rent, Abandonment of Property, Improvident Sale, Damages, Mitigation

Facts:

The appellant, V. Melfi Holding Ltd. (“Melfi”), was the owner of a large industrial warehouse which it sold to the respondent, Dourada Investment Inc. (“Dourada”), in 2011. Melfi was permitted to remain on the property as a tenant for a limited three-month period following the closing of the sale in order to remove its contents. Melfi then remained for a further period on a month-to-month basis as an over-holding tenant, and eventually defaulted on the payment of rent and utilities.

As part of the Agreement of Purchase and Sale for the sale of the property, Melfi was required to leave the premises in a “broom-swept” condition. Pursuant to the terms of the sale agreement, Dourada was also entitled to hold back $100,000 from the purchase price, to be released to Melfi upon all of Melfi’s sale covenants being fulfilled.

Following the termination of the lease, Melfi refused to remove its large amount of equipment and debris in the leased premises. On April 14, 2014, Dourada locked Melfi out of the premises for its failure to pay rent and utilities. Eventually, after multiple requests by Dourada for Melfi to remove its contents, for which Dourada provided numerous opportunities, Dourada sold what it could in order to mitigate its damages for arrears of rent and lost prospective rent.  Before doing so, Dourada obtained two appraisals regarding the value of the property.

Dourada brought a summary judgment motion against Melfi seeking arrears of rent, utilities and other damages. The motion was granted, with the motion judge finding that Melfi had in effect abandoned its goods. Melfi was held liable for rent/damages calculated at 25.5 months in the amount of $286,875 plus HST and utilities, less credits and the amounts Dourada recovered through its sale efforts. The motion judge further held that, contrary to Melfi’s allegation, there was no improvident sale, as Dourada had acted in a commercially reasonable manner in obtaining two appraisals and selling the abandoned contents to mitigate its damages after having provided ample advance warning to Melfi that this would be done.

Melfi appealed.

Issues:

1) Did the motion judge make a palpable and overriding error in finding that Melfi’s actions in failing to remove its contents from the premises constituted abandonment, entitling Dourada to sell the items to recoup arrears of rent?

2) Did the motion judge err in his calculation of the rent and damages payable by Melfi?

3) Did the motion judge err in ordering that the $100,000 holdback funds be released to Dourada?

4) Should Dourada have followed the procedure set out in the Commercial Tenancies Act regarding distress for non-payment of rent, even though Melfi conceded that this was not a situation of distress?

Holding:

Appeal dismissed.

Reasoning:

1) No. Dourada repeatedly requested that Melfi remove its goods from the warehouse, and gave Melfi multiple opportunities to do so. Melfi failed to avail itself of those opportunities, insisting that it would only remove the contents on its own terms. There was sufficient evidence on the motion for the motion judge to make the finding that Melfi had abandoned its goods.

2) No. Melfi was locked out of the premises on April 14, 2014, therefore rent was payable up to that date. Melfi’s failure to remove the contents from the premises made it impossible for Dourada to use or rent the premises. Therefore, the motion judge properly calculated damages for breach of the contractual obligation on the basis of rent that would otherwise be payable.

3) No. Melfi breached the terms of the Agreement of Purchase and Sale requiring it to remove its goods. As a result, the motion judge was entitled to find that that breach entitled Dourada to the $100,000 holdback funds as partial payment of the damages award.

4) No. Dourada sold Melfi’s goods after giving Melfi the opportunity to remove them and behaved in a commercially reasonable manner when it obtained appraisals and sold a portion of the items at a public auction. The motion judge found that there was no merit to the allegation of an improvident sale.

Reeves v. Brand, 2018 ONCA 263

[Laskin, Huscroft and Paciocco JJ.A.]

Counsel:

Ryan Kniznik, for the appellant

Stephen Codas and Sarah Strathopolous, for the respondent

Keywords: Family Law, Child Custody, Relocation, Best Interests of the Child, Costs

Facts:

Ms. Brand and Ms. Reeves are the parents of a six year old boy. After Ms. Brand and Ms. Reeves separated, they litigated over custody of their son and where he should live. Ms. Brand sought joint custody and asked that Ray remain in Toronto. Ms. Reeves sought sole custody and permission to relocate with Ray to New Ross, Nova Scotia, where her parents live and where Ray has spent considerable time.

After a seven-day trial, the trial judge granted the relief Ms. Reeves asked for. He then set out a detailed access schedule, intended to give Ms. Brand “reasonable, frequent contact” with Ray and awarded her costs of the action.

Ms. Brand brought a motion to stay the trial judge’s order pending appeal. Justice Miller dismissed the motion. Ms. Brand appeals all aspects of the trial judge’s judgment.

Issues:

(1) Did the trial judge err by failing to award joint custody because he made legal and factual errors concerning the level and quality of communication between the parties?

(2) Did the trial judge err by permitting Ray and Ms. Reeves to relocate to New Ross, Nova Scotia?

(3) Was the trial judge’s access schedule unreasonable because it turns Ms. Brand into a “holiday parent” and the four-hour limitation undermines frequent contact?

(4) Did the trial judge err in principle in his costs award?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. Trial judges’ decisions on custody and relocation are entitled to significant deference on appeal. Invariably, trial judges are in a better position than appellate judges to determine a child’s best interests. Ms. Brand’s challenge to the trial judge’s decisions on custody and relocation are largely an attack on his findings of fact. Those findings are reasonably supported by the record, and thus appellate intervention was not justified.

(2) No. The Court was satisfied that the trial judge sensitively balanced the competing interests of Ms. Brand and Ms. Reeves, and in permitting relocation, made an order in Ray’s best interests. This case differs from many of the relocation cases that come before the court in two important ways. First, this is not a case where relocation will sever a long-standing bond between Ray, and Ms. Brand and her family. For most of Ray’s life, he has had no bond, indeed no relationship at all, with Ms. Brand’s family. Second, this is not a case where the move to Nova Scotia will take Ray from a known home to a new and speculative environment. As the trial judge fairly observed, since he was born, Ray has been connected to Ms. Reeves’ family in New Ross and benefitted from their support. He has spent at least one-quarter of his life there. The support of the community and the Reeves family in New Ross has been part of Ray’s “status quo”. As the trial judge found, from Ray’s perspective, a relocation to New Ross is a return to what is “known” to him.

(3) Yes. The Court found that the four-hour restriction to Ray’s visits with Ms. Brand’s parents imposed by the trial judge unnecessary and contrary to his own finding on the bond between the son and Ms. Brand and her family, and not in the son’s best interests.

The trial judge gave no reasons for this restriction. The Court suspected that he imposed it because of his concerns about the attitude of Ms. Brand’s parents to their daughter’s lesbian relationship, the pregnancy, and ultimately to Ray. However, they had shown a change in attitude towards their daughter and her son.

(4) No. Although the award is sizable, it falls within the trial judge’s broad discretion over costs, and reflects no error in principle.

Bracken v. Niagara Parks Police, 2018 ONCA 261

[Doherty, LaForme and Miller JJ.A.]

Counsel:

F Bracken, acting in person

J Craig and T Khoury, for the respondent

Keywords: Constitutional Law, Canadian Charter or Rights and Freedoms, Section 2(b), Freedom of Expression, Property Law, Trespass, Provincial Offences, Disturbing Others, Using Abusive or Insulting Language, Provincial Offenses Act, R.S.O. 1990, c. P.33, Niagara Parks Act, R.S.O. 1990, c. N. 3, R. v. Batty, 2011 ONSC 6862

Facts:

On August 2, 2016, in the run-up to the U.S. presidential election, the appellant, Mr. Bracken, stood in Grand View Plaza in Niagara Parks, holding an offensive sign. Parks staff informed the Niagara Parks Police (the “NPP”), who asked him to leave and he refused. He became increasingly animated and made offensive remarks towards the officers. Eventually, one of the officers issued Mr. Bracken a summons under the Provincial Offenses Act, R.S.O. 1990, c. P.33 for two offences contrary to s. 2(9)(a) of O. Reg. 829 made under the Niagara Parks Act, R.S.O. 1990, c. N. 3 (the “Regulations”): (1) disturbing other persons and (2) using abusive or insulting language. The appellant sought declarations that (1) s. 2(9)(a) of the Regulations violates s. 2(b) of the Charter; and (2) the oral trespass notice served on him at the NPP headquarters similarly violates s. 2(b).

The application judge dismissed the application. He held that s. 2(9)(a) did not limit Mr. Bracken’s s. 2(b) Charter rights, because the constitutional guarantee of freedom of expression does not apply to shouting insulting or abusive language in the Parks. He declined to determine whether the oral trespass notice infringed s. 2(b), as he was not satisfied that a trespass notice had in fact been issued. Mr. Bracken appeals both aspects of the judgment.

Issues:

1. Did the application judge err in not finding that s. 2(9)(a) of the Regulations infringes s. 2(b) of the Charter?

2. Did the application judge err in not granting a declaration quashing the oral trespass notice?

Holding:

Appeal allowed in part.

Reasoning:

1. No. Section 2(9)(a) provides: “(9) … no person shall, within the Parks (a) use abusive or insulting language, or conduct himself or herself in the Parks in a manner that unnecessarily interferes with the use and enjoyment of the Parks by other persons”. The Court found that this restriction was limited to the use of abusive or insulting language that interferes with a patron’s use of the parks. The Court also found that the abusive language referred to in section 2(9)(a) constituted expression for the purpose of 2(b) of the Charter, and that section 2(9)(a) limited this expression. However, the Court subsequently undertook a section 1 analysis and found that the limitation prescribed by Section 2(9)(a) was justified.

2. Yes. Both parties take the position that when Mr. Bracken attended at NPP headquarters on August 4, an NPP officer, Mr. Forcier, delivered an oral trespass notice to Mr. Bracken: he was not to return to the Parks with his sign. If he did, he would be arrested and removed from the premises. Mr. Bracken attended at the station on August 4 specifically to clarify whether, on the NPP’s understanding of the law, he was permitted to display his sign. Inspector Forcier told him that he was not and that he would be arrested and removed if he did so. This disagreement about his legal rights was the impetus for Mr. Bracken to bring this proceeding in the first place, challenging the trespass notice as an infringement of his Charter rights. In the circumstances of this multi-pronged and on-going dispute between the parties, it was an error for the application judge not to bring some clarity by issuing a declaration quashing the trespass notice. Unlike the protesters in R. v. Batty, 2011 ONSC 6862, who essentially converted a public park to their exclusive use, this was an instance of a single person, standing on a sidewalk at the edge of a public, semi-commercial plaza within a park, holding a sign displaying a political message. In this instance, it is conceded that there were no circumstances that would justify the removal of a single protester with a sign from a busy plaza, and that the display of the sign, despite its profanity, did not constitute the use of insulting or abusive language within the meaning of s.2(9)(a).

A.C. Concrete Forming Ltd. v. JAC Concrete Structures and  Drain Inc., 2018 ONCA 272

[Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)]

Counsel:

D Touesnard, for the appellants

A Pilieci, for the respondent

Keywords: Contracts, Oral Agreements, Civil Procedure, Offers to Settle, Enforcement, Summary Judgment, Rules of Civil Procedure, Rules 20 and 49

Facts:

On a motion to enforce a settlement, the motion judge found that following a meeting, the respondent (A.C. Concrete Foaming Ltd.), by its counsel, and Ms. Tavares, litigation administrator and executor of the then deceased personal defendant, entered into a verbal settlement agreement. The motion judge concluded that Rule 49 had no application in the circumstances. Rather, she determined that the motion before her was akin to a summary judgment motion. Counsel for the appellants did not object to her proceeding on that basis.

Although there was conflicting evidence on the motion concerning whether a settlement agreement had been reached, the motion judge concluded it was appropriate to proceed in the interests of efficiency and access to justice and that oral evidence was unnecessary to assess credibility of the conflicting witness statements. Ultimately, the motion judge accepted the respondent’s evidence that a settlement had been reached and rejected the appellants’ evidence that it had not.

Issues:

(1) Did the motion judge err in failing to apply the two-part test under Rule 49.09 in determining whether the settlement should be enforced?

(2) Did the motion judge err in finding that there was no genuine issue regarding whether the parties intended to create a legally binding agreement?

(3) Did the motion judge err in failing to consider, by analogy to the Rule 49 test, whether any settlement agreement that may have been reached should be enforced?

Holding: Appeal dismissed.

Reasoning:

(1) No. No Rule 49 offers were served.  Accordingly, on a proper reading of Rule 49, it does not apply to this case. The motion judge was correct in making this determination.

(2) No. The motion judge carefully considered and gave detailed reasons for finding that there was a legally binding agreement. The appellants have demonstrated no palpable and overriding error in this finding.

(3) No. It was not made in the court below.  In any event, even assuming a two-part test is applicable, on reading the motion judge’s decision, it is clear that the motion judge fully considered all relevant factors impacting whether the settlement should be enforced.

Ligaj v. Ismail, 2018 ONCA 271

[Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)]

Counsel:

B A Cook and R Runge, for CUMIS General Insurance Company

A R. Camporese and S Coons, for Sherif Ismail

Keywords: Torts, Negligent Entrustment, Insurance Law, Automobile Insurance, Uninsured Motorists, Driving with Consent of Owner

Facts:

Following the first phase of a bifurcated trial, the trial judge concluded that Nihad Ismail drove the vehicle of his father, Sherif Ismail, without consent, either express or implied. The trial judge also found that the appellant, CUMIS General Insurance Company, failed to prove the tort of negligent entrustment against Sherif Ismail, if that tort even exists in Ontario. On appeal, CUMIS argued that the trial judge made palpable and overriding errors in her factual findings and that she further erred in failing to find it had established the tort of negligent entrustment.

Issues:

1. Did the trial judge make a palpable and overriding error in her findings of fact?

2. Did the trial judge err in failing to find that CUMIS had established the tort of negligent entrustment?

Holding: Appeal dismissed.

Reasoning:

1. No. Cumis argued that there was evidence that Sherif Ismali was chalking the tires of his Honda because he suspected that his son would take the vehicle. The Court of Appeal disagreed. The Court noted that the appellant misinterpreted the trial judge’s finding. The trial judge did not dispute that Sherif Ismail was chalking the tires, but found no evidence that he was doing so because of Nihad Ismail.

2. No. The trial judge found that Nihad Ismail drove his father’s vehicle without his father’s consent, either express or implied. Without deciding whether or not the tort of negligent entrustment exists in Ontario, the Court of Appeal found that even if it did exist it, could not be established in the face of the trial judge’s findings that there was no implied consent.

Barker v. Barker, 2018 ONCA 255

[Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)]

Counsel:

William D. Black and Sam Rogers, for the appellants Elliot Thompson Barker and Gary J. Maier

Sara Blake and Meagan Williams, for the appellant Her Majesty the Queen in Right of Ontario

Joel P. Rochon, Peter R. Jervis and Golnaz Nayerahmadi, for the respondents

Keywords: Torts, Battery, Negligence, Breach of Fiduciary Duty, Civil Procedure, Class Actions, Summary Judgment, Procedural Fairness, Limitation Periods, Laches, Statutory Interpretation, Retroactivity, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 16(1)(h.2)

Facts: The appellants, Elliott Thompson Barker, Gary J. Maier and Her Majesty the Queen in Right of Ontario (the “Crown”), appeal from the order of the motion judge in which he  dismissed the appellants’ motions seeking to have the respondents’ action dismissed as statute-barred or barred by the doctrine of laches; granted the respondents partial summary judgment for breach of fiduciary duty; and ordered a trial or additional summary judgment motions to prove victimization, harm, causation of harm and quantification of damages. The appellants also seek leave to appeal the motion judge’s costs order in favour of the respondents.

The respondents were patients committed to the Oak Ridge Division of the Mental Health Centre in Penetanguishene, Ontario, at various times between 1966 and 1983. They were subjected to intensive therapy programmes designed in part by the appellant, Dr. Barker, for Oak Ridge’s Social Therapy Unit which he and the appellant, Dr. Maier, oversaw. In 2000, one of the respondents commenced a proposed class action. The claims included breach of fiduciary duty, battery, negligence and contravention of common law principles and international law norms relating to the use of torture and cruel, inhumane or degrading treatment and punishment. The respondents have also alleged there was a lack of informed consent. The pleading asserts that patients at Oak Ridge were forced to participate in experiments that involved both psychological and physical torture. Certification of the class proceeding was denied in 2003 and, after an unsuccessful appeal, a motion was granted in 2006 to allow the action to continue as a multi-party proceeding.

The motion judge, who was managing the action, established a schedule for delivery of the appellants’ summary judgment material and a cross-motion to be brought by the respondents for summary judgment. The motion judge subsequently heard the appellants’ summary judgment motions. In his written reasons he noted that during the course of argument, he had advised the parties that he was of the view that there were four ways of deciding the motions. However, while writing his reasons, the motion judge decided to resolve the motions on a fifth basis: he would grant a notional cross-motion by the respondents for partial summary judgment of their claim for breach of fiduciary duty and order a trial or additional summary judgment motions to prove victimization, harm and causation of harm, and to quantify the individual respondents’ damages, if any.

Issues:

(1) Did the motion judge deny the appellants procedural fairness and err by granting partial summary judgment for breach of fiduciary duty?

(2) Did the motion judge err in dismissing the appellants’ motions and in concluding that the respondents’ claims were not statute-barred?

Holding: Appeal allowed.

Reasons:

(1) Yes. The motion judge had directed that the appellants’ motions proceed on the basis that liability was assumed. Given this direction, the appellants could not have reasonably expected that partial summary judgment for breach of fiduciary duty would be granted. At no time had the appellants conceded liability. The appellants’ statements of defence disputed the allegations of what occurred and the nature of the respondents’ experience at Oak Ridge and the motions judge erred in concluding otherwise. Moreover, the parties had not placed the evidentiary foundation for such an order before the motion judge. Nor, based on the procedure established by the motion judge, would they have expected that they would be denied the opportunity to advance argument on whether any fiduciary duty was owed and if so, whether it was breached.

In addition, at the hearing of the motions themselves, the motion judge had outlined for the parties the potential avenues for disposition of the motions. However, his fifth alternative of devising a notional cross-motion for partial summary judgment by the respondents for their claim of breach of fiduciary duty, which was never raised with the parties, amounted to a denial of procedural fairness. The relief granted was inconsistent with the December direction and also denied the appellants the opportunity to file evidence and make submissions on the issue.

(2) No. It would appear from the directions, the appellants’ motions for summary judgment, the motions judge’s reasons and the order itself that the motion judge was responding to a motion for summary judgment, not a Rule 21 motion. Indeed, the notices of motion, originally prepared prior to the December direction, were re-served and relied upon by the appellants for the purposes of the motions heard by the motion judge. In their notices of motion, the appellants stated that the motions were for “[s]ummary judgment dismissing this action as against the defendant physicians [and as against the Crown] on the basis there is no genuine issue requiring a trial as the action against them [and the Crown] is statute-barred” or, in the alternative, is “barred by the doctrine of laches”. Accordingly, it was incumbent on the appellants as moving parties to show that there was no genuine issue requiring a trial. The appellants did not meet this burden.

The application of the limitation periods and the laches doctrine advanced by the appellants requires a characterization of the conduct of the appellants and the relationship between the parties. The parties proceeded on the assumption that the appellants’ liability was established. The respondents’ pleading included very serious allegations of torture and degradation of human dignity. The motion judge, who has case managed the action for several years, concluded that the limitation period statutes do not encompass an action based on breach of fiduciary duty where the act of professional practice or experimentation is torture.

Based on the procedure adopted by the parties and the court, the appellants failed to show that there was no genuine issue requiring a trial on the breach of fiduciary duty limitation and laches issues. These issues do not simply engage questions of law; rather, they require factual determinations, on a proper record, on the nature and characterization of the appellants’ conduct and the relationship between the parties.

As for the causes of action other than breach of fiduciary duty (battery, negligence and breaches of common law and international norms), the appellants argue that it is implicit in the motion judge’s reasons that he decided the limitations issues in their favour. The motion judge’s reasons make it clear he did not fully analyze the respondents’ arguments in this regard, including arguments concerning the retroactive application of s. 16(1)(h.2) of the Limitations Act, mental incapacity, and the doctrine of discoverability. The applicable limitations periods, if any, for the other causes of action are best dealt with at trial, along with the applicable limitation period, if any, for the breach of fiduciary duty claim.

The motions judge’s order is varied, and the action is remitted for trial or summary trial as deemed appropriate to the Regional Senior Judge for the assignment of a trial judge.

Dunk v. Kremer, 2018 ONCA 274

[Sharpe, Juriansz and Miller JJ.A.]

Counsel:

A Rachlin, for the appellant

P J Pape, for the respondent

Keywords: Torts, Negligence, MVA, Civil Procedure, Expert Reports, Rules of Civil Procedure, Rule 53, Jury Trials, Closing Address, Damages

Facts:

During the trial of this personal injury action resulting from a motor vehicle accident, the appellants (Kremer) retained an expert but did not provide the respondent (Dunk) with a signed Rule 53 report until part-way through the trial. The appellants did not indicate that they would be calling their expert, Dr. Rizek, although they had given the respondent an unsigned copy of his report after the respondent’s orthopedic expert, Dr. Daniels, had testified, the appellants moved for an order permitting them to call their expert. The trial judge ruled that the expert could be called despite the non-compliance with Rule 53, but that he would be restricted to the four corners of his report. In particular, he would not be permitted to comment on developments that had arisen after he had prepared his report. The respondent’s experts had served supplementary reports in view of updated medical information and the appellants’ expert had not filed a response. On appeal, the appellants say this order unfairly limited the scope of Dr. Rizek’s evidence as he was unable to comment on Dr. Daniels’ oral evidence regarding the high probability the respondent would develop arthritis in her upper ankle joint necessitating a fusion of that joint as well leaving her “quite disabled”. Dr. Rizek’s report had not addressed that matter.

Moreover, the trial judge found that the closing address of the respondent’s trial counsel was inappropriate and inflammatory. Of particular concern were counsel’s comments regarding the limitations of Dr. Rizek’s evidence. The mistrial motion was argued for a full day and the trial judge explained in her reasons why she had concluded that the mischief of the closing could adequately be dealt with by a correcting instruction. She prepared and reviewed with counsel a detailed instruction touching on the most significant areas of complaint.

With respect to damages, the trial judge discussed with counsel the ranges they intended to offer the jury before they made their closing addresses. Appellants’ trial counsel submitted that there was no authority to support the respondent’s proposed range. The trial judge observed that there was no case on all fours. In the absence of any authority that the respondent’s proposal was outside an accepted or established range, she declined to offer any comment. She did, however, modify her proposed charge by adopting some of the language suggested by counsel for the appellant.

Issues:

(1) Did the trial judge err in restricting the scope of testimony of the appellants’ expert?

(2) Did the trial judge err in failing to declare a mistrial as a consequence of inappropriate closing submissions by the respondent’s trial counsel?

(3) Did the trial judge err in failing to provide sufficient guidance to the jury on the appropriate range for non-pecuniary damages?

(4) Does the cumulative effect of the alleged errors warrant a new trial?

Holding: Appeal dismissed.

Reasoning:

(1) No. This situation was largely the creation of the appellants and the Court saw no error on the part of the trial judge in ruling as she did. The appellants were slow to deliver a proper Rule 53 report or to indicate that the expert would be called. They had the appellants’ experts’ supplementary reports well in advance of trial and failed to have Dr. Rizek respond. As the trial judge observed, if Dr. Rizek were allowed to give evidence on developments not discussed in his report, it might require the respondent to split her case, recall her expert and incur significant additional expense and possible trial delay. This was a discretionary decision for the trial judge to make. She gave clear and cogent reasons in her ruling and the Court saw no ground for appellate intervention.

(2) No. It is well-established that the trial judge is in the best position to determine whether a mistrial is required to deal with an inflammatory closing address. A mistrial is the remedy of last resort and the trial judge’s decision to deal with the matter by way of instruction rather than mistrial attracts deference. The trial judge gave a very clear and strong instruction to the jury to disregard the problematic portions of counsel’s closing. The trial judge carefully itemized the objectionable aspects of the closing and clearly directed the jury to ignore those passages, explaining how and why counsel had gone astray. At the end of the day, the Court was not persuaded that when the record was considered as a whole, there was a miscarriage of justice requiring a new trial.

(3) No. This was a matter for the trial judge’s discretion. The respondent was only 18 years old at the time of the accident and there was evidence that it was going to cause her significant and serious long-term pain and impairment. She had already suffered several years of pain. The restriction imposed by the injury had caused her to alter her post-secondary education and career plans, and interfered with her day-to-day activities. It was likely that further surgery would be required and the respondent faced the prospect of increasing and indeterminate pain and impairment from arthritis as she aged. In these circumstances, the trial judge did not err in law in declining to comment on the range for general damages suggested by the respondent’s counsel. Nor did the Court agree that the jury’s award was so inordinately high as to call for appellate intervention. Given the deference accorded to jury damage assessments, the nature of the injury and the likelihood that, in the words of the appellant’s expert, she would likely require further surgery in the future that would leave her “quite disabled”, there is no basis for the Court to interfere.

(4) No. There is not a “synergy” to the alleged errors and their cumulative effect does not warrant a new trial.

Pey v. Pey, 2018 ONCA 284

[Hoy A.C.J.O., Juriansz and Miller JJ.A.]

Counsel:

Carol Craig, for the respondent, Kristina Pey

Deann Nixon, for the respondent, Director, Family Responsibility Office

Keywords: Family Law, Orders, Support, Enforcement, Striking Motions, Committal for Non-Payment, Family Responsibility Office

Facts:

The father appeal’s from an order striking his motion requesting a variation of the trial judge’s order and the order of Justice Doyle addressing access. The motion judge’s order striking the father’s motion also granted a motion by the Family Responsibility Office (FRO) ordering the father to pay lump sum amounts within specified time periods, in default of which the FRO was entitled to bring a motion for committal, on notice to the father, for imprisonment of the father for up to 180 days.

Issues:

(1) Did the motion judge err in striking the father’s motion and granting the FRO’s motion?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge struck the father’s motion on the basis of his non-compliance with several court orders. The motion judge found that the father had the means to comply with these court orders but that they simply had not been a priority for him. It would not be appropriate to provide the father an opportunity to request relief from the Court when he had chosen to ignore the orders of the Court, which gave relief to the mother. The motion judge applied the proper principles in deciding a motion to strike under rule 1(8) of the Family Law Rules. The motion judge was also correct to grant the order of the FRO, noting that “the father has the ability to pay the child and spousal support he owes but to date, he [has] chosen not to do so.”

Weenen v. Biadi, 2018 ONCA 288

[Epstein, Hourigan and Paciocco JJ.A.]

Counsel:

Sarah Turney and Anastasia Reklitis, for the moving party, Fasken Martineau DuMoulin LLP

Yan David Payne, for the responding party, Matthew Weenen

Keywords: Contracts, Solicitor and Client, Unpaid Legal Fees, Charging Orders, Solicitors’ Liens, Solicitors Act, R.S.O. 1990, c. S.15, s. 34, Appellate Jurisdiction, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 13(2) and 134(1)

Facts:

Fasken Martin DuMoulin LLP (the “Law Firm”) represents the plaintiff (the “Client”). The Law Firm brought a motion for a charge or lien in the amount of $360,836.88 on the funds the defendant was ordered to pay the plaintiff for fees due by the Client.

Issues:

(1) Does the Court of Appeal have jurisdiction to make an order for a charge or lien?

(2) Is the Law Firm entitled to either a charge or lien?

Holding:

Motion denied.

Reasoning:

(1) Yes. A court’s inherent jurisdiction to declare a lien on the proceeds of its own judgments is well-established. It follows that the Court has the inherent jurisdiction to grant, when warranted, a solicitor’s lien over the $50,000 in costs awarded in favour of the Client on the appeal. The Court also has jurisdiction to issue a charging order under the Solicitors Act, R.S.O. 1990, c. S.15. A judge in the Court of Appeal is a judge of the Superior Court with all of the jurisdiction, power and authority of a judge of that court under s. 13(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 and under s. 134(1) of that Act, may make any order or decision that could have been made by the court appealed from.

(2) No. To grant either a charge under s. 34 of the Solicitors Act or a lien, the solicitor must demonstrate:

  1. the fund or property is in existence at the time the order is granted;
  2. the property was “recovered or preserved” through the instrumentality of the solicitor; and
  3. there must be some evidence that the client cannot or will not pay the lawyer’s fees.

The Law Firm failed to successfully discharge its burden of establishing that it will likely not be paid without a charging order or lien. The Client had made payments on three of four occasions on which the Law Firm requested payment. The fact that the Client contests the amount he owes the Law Firm is not evidence of his inability or unwillingness to pay.

The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283

[Doherty, MacFarland and Paciocco JJ.A.]

Counsel:

B H Greenspan, D C Moore and M Biddulph, for the appellant

R A Centa, K Borg-Olivier and D Cooney, for the respondent, Brandon Moyse

K E Thomson, M Milne-Smith and A Carlson, for the respondent, West Face Capital Inc.

Keywords: Torts, Breach of Confidence, Spoliation, Costs, Substantial Indemnity

Facts:

The appellant, The Catalyst Capital Group Inc. (“Catalyst”), and the respondent, West Face Capital Inc. (“West Face”), two investment management firms, made separate efforts to acquire WIND Mobile Inc. (“WIND”) in 2014. In early August, it appeared that Catalyst and the principal shareholder of WIND had reached an agreement for the sale of WIND to Catalyst. Within days, that agreement had fallen apart and West Face, along with other entities (the “consortium”) had come forward with a new, and eventually, successful bid for WIND. The consortium and West Face later sold WIND for a very substantial profit to Shaw Communications.

In this lawsuit, Catalyst alleged that West Face effectively “stole” the WIND deal from Catalyst by improperly using confidential information West Face obtained about Catalyst’s strategies in respect of its negotiations for the purchase of WIND. According to Catalyst’s claim, the confidential information came from the respondent, Brandon Moyse (“Mr. Moyse”). He had worked for Catalyst as an analyst for about two years until May 2014, when he quit Catalyst to go to work for West Face. Catalyst sued for misuse of confidential information and spoliation; the latter as a result of allegations that Mr. Moyse destroyed evidence contained on his cellphone and personal computer.

The trial judge dismissed the case and Catalyst appealed arguing (1) that there were errors in the trial judge’s fact-finding process; (2) procedural unfairness; and (3) that the trial judge erred in his analysis of the spoliation claim.

Issues:

1. Did the trial judge err in his fact-finding process?

2. Was there procedural unfairness?

3. Did the trial judge err in his analysis of the spoliation claim?

4. Did the trial judge err in his assessment of costs?

Holding:

Appeal dismissed.

Reasoning:

1. No. The trial judge’s findings of fact turned on his assessment of the credibility of the key witnesses, the reliability of their evidence, and the inferences to be drawn from certain primary findings of fact. His determinations are owed strong deference on appeal. The appellants argued that the trial judge demonstrated an uneven scrutiny in his weighing of witness testimony, leading him to conclude that the appellant’s witness was not credible while giving Mr. Moyse the benefit of the doubt for what the appellants described as egregious misconduct.

The trial judge approached the evidence of the respondents’ witnesses no differently than he did the evidence of the appellant’s witnesses. The trial judge’s reasons must be considered in their entirety. Mr. Moyse’s evidence that he did not provide confidential information concerning the WIND negotiations to West Face did not stand alone. The evidence found considerable, largely uncontradicted support in the testimony of the West Face witnesses. It also gained some inferential support in the trial judge’s findings as they related to the West Face strategy in respect of the WIND negotiations, and the ultimate reason for the breakdown of the negotiations between the appellant and the vendor of the WIND shares. The Court of Appeal therefore rejected this argument.

The appellants also argued that the trial judge misapprehended evidence. The Court of Appeal found no such misapprehension.

2. No. The appellant argued that the trial judge made a series of factual findings against the appellant in respect of the dealings between the vendor of the WIND shares and West Face and the consortium in August 2014. The appellant argued that these findings were made despite the trial judge having refused to allow the appellant to amend its claim to allege that West Face had induced the vendor of the WIND shares to breach its agreement with the appellant in the course of those August dealings. The appellant contended that the trial judge’s findings were beyond the scope of the claim as framed in the pleadings before him and were based on an inadequate evidentiary record. The Court of Appeal rejected this argument. The appellant did not move in this proceeding to amend its claim to include an allegation that West Face induced the vendor of the WIND shares to breach its contract with the appellant. The appellant did unsuccessfully seek to make that amendment in a related proceeding but that refusal had no impact on the conduct of the trial.

3. No. The appellants argued that the trial judge erred in holding that an adverse evidentiary inference could be drawn against the respondents as a result of Mr. Moyse’s destruction of relevant evidence only if the appellant established that Mr. Moyse and/or West Face destroyed that evidence for the specific purpose of affecting the outcome of the litigation. Counsel submitted that the adverse inference was appropriately drawn if relevant evidence was destroyed in the face of pending or reasonably foreseeable litigation. Any inference that may be drawn against the respondents can arise only after a finding that Mr. Moyse destroyed relevant evidence. The trial judge found as a fact that Mr. Moyse did not destroy relevant evidence. Therefore this ground of appeal was also dismissed.

4. No. The appellant appealed the trial judge’s costs award, which was determined to be on a substantial indemnity basis. The Court of Appeal upheld the order. The trial judge awarded costs to West Face on a substantial indemnity basis because the appellant had made serious and unfounded allegations impugning the honesty and integrity of West Face and its senior executives. He concluded that the lawsuit was precipitated primarily by Mr. Glassman’s frustration over losing out on the acquisition of the WIND shares. The appellant chose to make very serious allegations against West Face, maintain those allegations in the face of substantial evidence refuting the allegations, and in the end “utterly failed” to substantiate any of the claims. Accordingly, this was a case that warranted costs on a substantial indemnity scale.

2363523 Ontario Inc. v. Nowack, 2018 ONCA 286

[Brown J.A. (In Chambers)]

Counsel:

Paul Slansky, for the moving party

Norman Groot, for the responding party

Keywords: Civil Procedure, Extension of Time, Security for Costs, Yaiguaje v. Chevron Corporation, 2017 ONCA 827, Courts of Justice Act, R.S.O. 1990, c. C.43, to ss. 7(5), Rules of Civil Procedure, R. 61.16(6).

Facts:

The appellant, Steven Nowack, is appealing the order of Dunphy J. dated June 30, 2017, which imposed a further term of imprisonment of 21 days for contempt. In that appeal, Hoy A.C.J.O. made an order dated December 6, 2017, requiring the appellant to post security for costs of $10,000 within 30 days (the “Order”). The appellant seeks an extension of time to file a notice of motion for a panel review of the Order pursuant to s. 7(5) of the Courts of Justice Act, and Rule 61.16(6) of the Rules of Civil Procedure. The respondent vigorously opposes the motion.

The appellant served respondent’s counsel with a notice of motion on January 10, 2018. However, Rule 61.16(6) required the service and filing of the notice of motion within four days after the Order was made, that is by December 10, 2017.

Issues:

(1) Should an extension of time be granted to file a notice of motion for a panel review of the Order pursuant to s. 7(5) of the Courts of Justice Act?

Holding: Motion granted.

Reasons:

1. Yes. Motions for the extension of time to file a court document require looking at several factors. Most importantly, they require looking at the justice of the case in all the circumstances. The appellant formed an intention to seek a review of the security for costs order shortly after it was made. The appellant moved with some dispatch to serve and file a notice of motion to review, albeit outside the very short four-day service window in the Rules. Further, the underlying appeal engages the liberty of the subject, and two judges of the court have described the merits of the appeal from the order of Dunphy J. as “not frivolous” and having merit.

Additionally, although orders for security for costs are discretionary in nature and usually entitled to deference, a panel of court in Yaiguaje v. Chevron Corporation recently reversed an order for security for costs because the chambers judge had “erred in principle in determining the justness of the order sought”. It therefore is difficult to predict the degree of deference that a panel will afford to any particular order for security for costs made by a single judge.

Rule 3.02(1) states that the court may extend any prescribed time “on such terms as are just.” As a general practice, motions to a panel to review an order of a single judge of the Court of Appeal are heard orally. Due to concerns about further delays in the appeal, it was directed that the appellant’s review motion be heard by a panel of the court in writing.

Justice Brown lamented an apparent increase in motions seeking panel reviews of decisions made by single judges of the Court of Appeal as follows:

“In fashioning this remedy, I am influenced by the most unfortunate, but increasing, practice of parties seeking panel reviews of single judge decisions pursuant to s. 7(5) of the CJA. That provision, quite unintentionally, is now fuelling the emergence of a motions culture in this court. Decisions of single judges on the simplest of procedural matters, such as the extension of time, now prompt a further motion demanding an “internal appeal” of the decision to a panel. Motion time is heaped upon motion time, which delays hearing an appeal on its merits.”

Brown v. Woodstock (Police Services Board), 2018 ONCA 275

[Rouleau, Huscroft and Fairburn JJ.A.]

Osborne G. Barnwell and Darryl Singer, for the appellant

Brian McCall and Beth Belanszky, for the respondents

Keywords: Torts, Battery, Wrongful Arrest, Unlawful Search and Seizure, Wrongful Detention, Civil Procedure, Limitation Periods, Discoverability, “Appropriate Means”, Limitations Act, 2002, s. 5(1), Winmill v. Woodstock (Police Services Board), 2017 ONCA 962

Facts:

The appellant (Everton Brown) was arrested by the respondent police officers on February 13, 2013. Subsequently he was prosecuted for possession of crack cocaine, possession for the purpose of trafficking, possession of the proceeds of crime, and resisting arrest. On October 22, 2015, the appellant entered into a peace bond and the charges against him were withdrawn. The appellant commenced this civil action against the respondents on May 13, 2016.

The motion judge applied case law holding that a claim for damages for false arrest, false imprisonment, and breach of Charter rights crystallizes on the date of arrest, and that the limitation period for an assault or battery runs from the date the assault or battery occurs. He concluded that the appellant had sufficient facts within his knowledge on the day he was arrested – February 13, 2013 – and as a result, his action was commenced well outside the two-year limitation period. The motion judge dismissed the claim as statute-barred.

Issues:

(1) Did the motion judge err by finding that the appellant’s claim crystalized on the date of arrest, and that the limitation period for an assault or battery runs from the date that the battery or assault occurs?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The motion judge applied existing case law in coming to his decision. However, the parties were permitted to file supplementary factums in light of the Court of Appeal’s decision in Winmill v. Woodstock (Police Services Board), 2017 ONCA 962, which was released following the motion judge’s decision.

Winmill cannot be distinguished from this case on the basis that the charges in this case are different, or that the prosecution of the appellant ended with his entering into a peace bond rather than an acquittal. Nor is it relevant that Winmill was also concerned with a claim for negligent investigation. The key point is that, as in Winmill, the battery action is essentially a mirror image of the criminal charge of resisting arrest that the appellant was facing. As a result, it was open to the appellant to await the outcome of the criminal proceedings against him before finally deciding whether to bring his action, regardless of when he first formed the intention to sue. Specifically, the discovery date for the appellant’s action was October 22, 2015 – the date the criminal charges him were brought to a conclusion with a peace bond (see ss. 5(1)(a)(iv) of the Limitations Act, 2002, SO 2002, c 24, Schedule B – commencing a proceeding being an “appropriate means” to seek a remedy). The appellant had two years from that date in which to bring his action. Therefore, the appellant’s action, which was commenced May 13, 2016, was in time.

Huang v. Fraser Hillary’s Limited, 2018 ONCA 277

[Strathy C.J.O. (Motion Judge)]

Counsel:

Sarah McDonald and Kaitlyn Mitchell, for the proposed intervener Ecojustice

Michael S. Hebert, for the appellant Eddy Huang

Jeremy R. Rubenstein, for the respondent David Hillary

Michael S. Rankin and Jonathan O’Hara, for the respondent Fraser Hillary’s Limited

Keywords: Torts, Nuisance, Trespass, Negligence, Strict Liability (Rylands v. Fletcher (1868), L.R. 3 H.L. 330 (U.K. H.L.)), Environmental Contamination, Environmental Protection Act, R.S.O. 1990, s. 99, Civil Procedure, Interveners, Rules of Civil Procedure, Rule 13.02, Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.)

Facts:

Ecojustice moves for leave to intervene in this appeal by the plaintiff, Mr. Huang, as a friend of the court pursuant to Rule 13.02 of the Rules of Civil Procedure. The judgment appealed from held Fraser Hillary’s Limited liable in nuisance and under the Environmental Protection Act (“EPA”) for approximately $1.8 million in damages arising from the contamination of Mr. Huang’s land by pollutants from the dry cleaning business of Fraser Hillary’s Limited. Claims in trespass, negligence and under the rule in Rylands v. Fletcher were dismissed. The claims against Mr. Hillary personally were also dismissed.

Issue: Should Ecojustice be granted leave to intervene in this appeal as a friend of the court?

Holding: Motion dismissed.

Reasoning:

No. The considerations on a motion to intervene are set out in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. They are as follows:

(a) the nature of the case;

(b) the issues that arise; and

(c) the likelihood that the proposed intervener will be able to make a useful contribution    to the resolution of the appeal without causing injustice to the immediate parties.

(a) Nature of the case: The standard to be met by the proposed intervener is more onerous where the litigation is a private dispute as opposed to a public prosecution. This case falls into the former category. It is fundamentally private litigation in which one of the parties, Mr. Huang, claimed that the other parties polluted his property.

(b) The issues that arise: The issues concern the application of well-settled, in fact ancient, causes of action: trespass, negligence and nuisance. There is also an issue concerning the application of a statutory provision: s. 99(2) of the EPA. Intervention may be warranted in some cases where the construction or application of important legislation – particularly a provision such as this, which has received little judicial interpretation – is at issue. Significantly, however, this provision is not a major focus of the proposed intervention. Ecojustice proposes to make “brief submissions” about the appropriateness of rebutting the presumption against the retrospective application of the provision. The Court was not satisfied that Ecojustice’s participation will materially assist.

(c) Useful contribution without causing injustice: The Court was not satisfied that the proposed intervention would assist in any meaningful way. Many of Ecojustice’s submissions on the common law causes of action simply recast the submissions made by the parties themselves.

Short Civil Decisions

FCI Concrete Forming Inc. v. Buttcon Limited, 2018 ONCA 268

[Feldman, Watt and Paciocco JJ.A.]

Tony Van Klink, for the appellants

Daniel Shields and Hendrick Nieuwland, for the respondents

Keywords: Labour Law, Conspiracy to Injure, Stay, Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 76, Appeal Dismissed

Holmes v. Stockton Estate, 2018 ONCA 273

[Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)]

Counsel:

Todd D. Storms, for the appellants

Allen Wilford, for the respondent

Keywords: Real Property, Mortgages, Debtor-Creditor, Family Law, Estates, Bankruptcy and Insolvency, Fraudulent Conveyances, Child Support

Rutman v. Rabinowitz, 2018 ONCA 279

[Cronk, Huscroft and Nordheimer JJ.A.]

Helen A. Daley and Michael Finley, for the appellants Moishe Bergman and Artcraft Company Inc.,

John J. Adair, for the appellant Saul Rabinowitz

Keywords: Costs, Substantial Indemnity

S.N.S Industrial Products Limited v. Omron Canada Inc., 2018 ONCA 278

[MacFarland, Huscroft and Nordheimer JJ.A.]

John W. McDonald, for the appellant

Robert E. Kwinter & Nicole Henderson, for the respondent

Keywords: Contracts, Summary Judgment, Fresh Evidence, Appeal Dismissed

Alguire v. The Manufacturers Life Insurance Company (Manulife Financial), 2018 ONCA 280

[Feldman, Cronk and Hourigan JJ.A.]

Peter Griffin, Warren Rapoport and Aryan Ziaie, for the appellant

Robert Harrison and Chad Pilkington, for the respondent

Keywords: Endorsement, Costs, Partial Indemnity

Haque v. St. Joseph’s Health Centre, 2018 ONCA 285

[Hoy A.C.J.O., Juriansz and Miller JJ.A.]

Mahfuzul Haque, appearing as self-represented

Naveen Hassan, for the respondents

Keywords: Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 2.1.01(6), Appeal Dismissed

Johnson v. Menezes, 2018 ONCA 287

[Hoy A.C.J.O., Juriansz and Miller JJ.A.]

David Harris-Lowe, for the appellant

Elizabeth Sachs, for the respondent

Keywords: Family Law, Custody, Retroactive Child Support, Default Judgments, Appeal Allowed in Part

Aminzada v. Wal-Mart Canada Corp., 2018 ONCA 269

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

Joel P. McCoy, for the appellant

Donna Polgar, for the respondents

Keywords: Torts, Negligence, Standard of Care, Appeal Dismissed

Lemesani v. Lowerys Inc., 2018 ONCA 270

[Simmons and Pepall JJ.A. and Fragomeni J. (ad hoc)]

Jordan Lester, for the appellant

Roderick W. Johansen, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Constructive Dismissal, Appeal Dismissed

Universal Health Group Inc. v. Limmex AG, 2018 ONCA 289

[MacFarland, Huscroft and Nordheimer JJ.A.]

Patricia Virc, for the appellant

Matthew Latella and Glen Gibson for the respondents

Keywords: Endorsement, Appeal Dismissed

Manulife Bank of Canada v. Holden-Khan, 2018 ONCA 297

[MacFarland, Huscroft and Nordheimer JJ.A.]

Lutful Khan, acting in person

Natalie Marconi, for the respondent

Keywords: Mortgages, Fresh Evidence, Property Tax, Appeal Dismissed

Nichols v. Closs Jr., 2018 ONCA 295

[MacFarland, Huscroft and Nordheimer JJ.A.]

Ralph Lee, for the appellant

David Heeley, for the respondent

Keywords: Estates, Life Interests, Appeal Dismissed

Ontario Review Board Decisions

Mitchell (Re), 2018 ONCA 267

[Feldman, Watt and Paciocco JJ.A.]

Jessica Zita, for the appellant Stacey Mitchell

Andrew Cappell, for the Attorney General of Ontario

Keywords: Ontario Review Board, Community Living, Public Safety, Appeal Dismissed

Criminal Decisions

R v. Jennings, 2018 ONCA 260

[Watt, Hourigan and Miller JJ.A.]

David Friesen, for the appellant

Noah Schachter, for the respondent

Keywords: Criminal Law, Driving Under the Influence, Unreasonable Search or Seizure, Charter of Rights and Freedoms, s. 8, Appeal Allowed

 R v. Macintyre-Syrette, 2018 ONCA 259

[Juriansz, Watt and Miller JJ.A.]

Kristin Bailey and John Fennell, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal Law, Sexual Assault, Sentencing, Appeal Dismissed

R v. Dhillon, 2018 ONCA 281

[Sharpe, Pardu and Fairburn JJ.A.]

Alan Gold and Alex Palamarek, for the appellant

Milica Potrebic, for the respondent

Keywords: Criminal Law, Trafficking, Sentencing, Appeal Dismissed

R v. Cuff, 2018 ONCA 276

[Rouleau, Huscroft and Fairburn JJ.A.]

Marianne Salih, for the appellant

Lisa Csele and Sharon Reynolds, for the respondent

Keywords: Criminal Law, Possession of Cocaine, Trafficking, Failure to Comply with Probation Order, Search and Seizure, Appeal Dismissed

R v. Long, 2018 ONCA 282

[Strathy C.J.O., Doherty, Hourigan, Roberts JJ.A. and McCombs J. (ad hoc)]

Mark C. Halfyard and Breana Vandebeek, for the appellant

Christine Bartlett-Hughes, for the respondent

Matthew R. Gourlay and Ben Rogers, for the intervener, The Criminal Lawyers’ Association (Ontario)

Keywords: Criminal Law, Sexual Assault, Criminal Code, R.S.C. 1985, c. C-46, Section 490.013(2.1), Canadian Charter of Rights and Freedoms, Section 7, Sex Offender Information Registration Act, S.C. 2004, c. 10

R v. Hewitt, 2018 ONCA 293

[Brown J.A. (Motion Judge)]

Robert J. Reynolds, for the moving party, appearing via videoconference

Avene Derwa, for the responding party

Keywords: Criminal Law, Trafficking, Sentencing, Interim Release, Criminal Code, s. 99(1)(a), Canadian Charter of Rights and Freedoms, s. 12, Application Dismissed

R v. Potts, 2018 ONCA 294

[Watt, Brown and Roberts JJ.A.]

Paul Calarco, for the appellant, Jeffrey Potts

Colin Wood, for the appellant, Tracy Robinson

Meaghan Hourigan, for the respondent

Keywords: Criminal Law, Trafficking, Wilful Blindness, Expert Evidence, Character Evidence, Appeal Dismissed

R v. Porto, 2018 ONCA 291

[Sharpe, Pardu and Fairburn JJ.A.]

David Butt and Maija Martin, for the appellant

Frank Au, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Highway Traffic Act  R.S.O. 1990, c. H.8, s. 128(13), Appeal Dismissed

 

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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