ONTARIO COURT OF APPEAL SUMMARIES (MAY 13- MAY 18)

Good afternoon.

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

Off the top, I would like to congratulate our very own Roger Horst and Rafal Szymanski on successfully representing the respondent in Correct Building Corporation v. Lehman. The Court dismissed the appeal against our client and granted our client’s cross-appeal, resulting in a dismissal of all claims against our client by way of summary judgment.

Other topics covered this week included whether a landlord’s insurer can bring a subrogated claim against a tenant of a commercial property for negligence causing fire, a fee dispute between lawyer and client, uninsured motorist coverage, agreements of purchase and sale of land and setting aside consent orders. The Court also denied leave to appeal the provincial offences convictions arising out of the Sunrise Propane incident in North York that took place almost ten years ago now.

Wishing everyone an enjoyable Victoria Day (and royal wedding) long weekend.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

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

Table of Contents 

Skunk v. Ketash, 2018 ONCA 450

Keywords: Contract Law, Contractual Interpretation, Insurance Law, Rules of Civil Procedure, Rule 21.01, Uninsured Vehicles, OPCF 44R Family Protection Coverage Endorsement, R. v. Clarke, 2013 ONCA 7

Sri Guru Nanak Sikh Centre Brampton v. Rexdale Singh Sabha Religious Centre, 2018 ONCA 459

Keywords: Civil Procedure, Settlements, Enforceability, Standard of Review, Palpable and Overriding Error

Ehsaan v. Zare, 2018 ONCA 453

Keywords: Summary Judgment, Costs, Real Property, Damages, Appraisals, Davies v. Clarington, 2009 ONCA 722, Ontario Ltd. v. Niagara (Regional Municipality), [2005] O.J. No. 1907

Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Covenant to Insure, Tenant Negligence, Fire, Subrogation, Agnew-Surpass v. Cummer-Yonge, [1976] 2 S.C.R. 221, Ross Southward Tire v. Pyrotech Products, [1976] 2 S.C.R. 35, T. Eaton Co. v. Smith et al., [1978] 2 S.C.R. 749

Lang Michener LLP v. King, 2018 ONCA 471

Keywords: Contracts, Solicitor and Client, Torts, Solicitor’s Negligence, Costs

Correct Building Corporation v. Lehman, 2018 ONCA 462

Keywords: Torts, Negligent Misrepresentation, Fraudulent Misrepresentation, Conspiracy, Negligence, Inducing Breach of Contract, Wrongful Interference with Economic Relations, Summary Judgment

Civil Decisions

Skunk v. Ketash, 2018 ONCA 450

[Rouleau, Roberts and Fairburn JJ.A.]

Counsel:

Edward S.E. Kim, for the appellant

Alex W. Demeo, for the respondent, Jevco Insurance Company

Keywords: Contract Law, Contractual Interpretation, Insurance Law, Rules of Civil Procedure, Rule 21.01, Uninsured Vehicles, OPCF 44R Family Protection Coverage Endorsement, R. v. Clarke, 2013 ONCA 7

Facts:

This is an appeal from the determination of a legal question under Rule 21.01 of the Rules of Civil Procedure, resulting in the dismissal of the appellant’s claim against the respondent insurer. The appellant was a passenger in his spouse’s vehicle when it was taken without consent by an uninsured driver, Laurel Ketash. The vehicle was then involved in an accident and the appellant was injured. The motion judge determined that the appellant’s spouse had no applicable and collectible bodily injury liability insurance because Ms. Ketash was driving the vehicle without the owner’s consent. He concluded that because the appellant’s spouse owned the vehicle, he was excluded from uninsured automobile coverage under the Insurance Act, R.S.O. 1990, c I.8, the Ontario Automobile Policy (OAP) and the OPCF 44R Family Protection Coverage Endorsement.

Section 265(2) of the Insurance Act provides a definition of an “uninsured automobile. Section 1.11 of the OPCF 44R Family Protection Coverage, reads in virtually identical terms to those included in the appellant’s policy: an “uninsured automobile …does not include an automobile owned by or registered in the name of the insured or his or her spouse”. The motion judge found no ambiguity in the plain language of the statute or the contractual policies at issue and concluded that the language is clear on its face.

Issues:

(1) Did the motion judge err in his interpretation of section 1.11 of the insurance policy?

Held: Appeal Dismissed

Reasons:

(1) No. The principles of statutory interpretation require that the court first look to the plain meaning of the statute. If the words have a plain meaning and give rise to no ambiguity, then the court should give effect to those word as per R. v. Clarke, 2013 ONCA 7. The meaning of the definition of “uninsured automobile” under s. 265(2) is clear and unambiguous: “uninsured automobile means … but, does not include an automobile owned by or registered in the name of the insured or his or her spouse [emphasis added].”

As a general rule, clauses in insurance policies will be granted a liberal meaning “in favour of the insured and those clauses excluding coverage will be construed strictly against the insurer. The difficulty here is that the provision, virtually identical to the wording of the same definition of “uninsured automobile” under s. 265(2), is clear on its face. In order to arrive upon the appellant’s interpretation of the provision, it would be necessary to read words into the provision. The provision would have to be interpreted as meaning that an “uninsured automobile … does not include an automobile owned by or registered in the name of the insured or his or her spouse, [but only where the insured or his or her spouse has deliberately chosen not to insure the vehicle].”

Reading the words out of an insurance policy or giving the words an opposite meaning is not synonymous with a liberal interpretation. The same can be said for adding the phrase that would be required to give effect to the appellant’s submission. The fact that this may produce a “harsh result” does not mean that it is an absurd result, as it is in accordance with the plain meaning of the unambiguous provision.

Sri Guru Nanak Sikh Centre Brampton v. Rexdale Singh Sabha Religious Centre, 2018 ONCA 459

[Lauwers, Benotto and Nordheimer JJ.A.]

Counsel:

M Wiffen, for the appellant

P Baxi, for the respondent, Sri Guru Nanak Sikh Centre Brampton

J Nussbaum, for the respondent, Rexdale Singh Sabha Religious Centre

Keywords: Civil Procedure, Settlements, Enforceability, Standard of Review, Palpable and Overriding Error

Facts:

The defendant, Sikh Spiritual Centre Toronto, appeals from the judgment of the motion judge refusing to set aside the consent order of Justice Mark Edwards dated February 4, 2016 that enforced a settlement between the parties.

Issues:

(1) Did the motion judge err by refusing to set aside the consent order that enforced a settlement between the parties?

Holding: Appeal dismissed.

Reasoning:

(1) No. The motion judge gave very lengthy reasons for her decision.  She reviewed, in detail, the factual background of this matter including how the loan came about, the commencement of the litigation, and the steps that were taken that led to the settlement.  The motion judge concluded that the settlement had been entered into by a Director of the appellant who was authorized to do so.  The motion judge also pointed out that the appellant was represented by counsel throughout the proceeding, including all aspects of the settlement.  Finally, the motion judge concluded that there was no proper basis for her to exercise her discretion not to enforce the settlement.  It was clear, in the motion judge’s view, that the appellant had borrowed the monies in question and that the settlement, by which most of the monies were to be repaid over time, was a reasonable one.

The conclusions reached by the motion judge are entitled to deference by this court. Given that those conclusions reflect findings of fact, this court can only interfere if the appellant demonstrates that the motion judge has made palpable and overriding errors: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.  The appellant has failed to do so in this case.  It is not the role of this court to reweigh the evidence or to substitute our view of the evidence for that of the judge of first instance.

Ehsaan v. Zare, 2018 ONCA 453

[Rouleau, Roberts and Fairburn JJ.A.]

Counsel:

SNZ, for the appellant

SR, for the respondents

Keywords: Summary Judgment, Costs, Real Property, Damages, Appraisals, Davies v. Clarington, 2009 ONCA 722, Ontario Ltd. v. Niagara (Regional Municipality), [2005] O.J. No. 1907

Facts:

The appellant obtained judgment against the respondents on a motion for summary judgment. The appellant’s action arose out of a failed transaction to purchase the respondents’ property, which the respondents refused to close.

The motion judge granted the appellant judgment in the amount of $118,954.95, including $43,000 for the difference in value of the property from the date of the agreement of purchase and sale to the closing date. The motion judge ordered that there be no costs.

The appellant’s appeal is narrow: she takes issue with the amount of $43,000 awarded, submitting that the motion judge erred in taking the average between the parties’ respective property appraisals. She also seeks leave to appeal the motion judge’s order that she receive no costs of her action or motion for summary judgment.

With respect to the damages issue, at trial, there was a dispute between the parties as to the appropriate appraised value of the property. The appellant’s own appraisal evidence was that the value of the property was between $1.275 and $1.375 million as of the closing date. The respondents’ evidence appraised the property as of the closing date at a value of $1.375 million; however, they disputed that value and relied on the lower end of the appellant’s appraisal evidence. The motion judge concluded that there was “no basis for the court to prefer one or other of the appraisals” and determined that the “reasonable conclusion” would be to take the midpoint of the highest and lowest appraised values.

Issues:

(1) Did the motion judge err in its assessment of damages?

(2) Did the motion judge err in not awarding costs to the appellant?

Holding: Appeal allowed in part

Reasoning:

(1) No. The motion judge’s assessment and calculation of damages are entitled to deference. His explanation as to why he took the average of the figures submitted by the parties, including the absence of a basis to understand which appraisal was preferable, was reasonable on this record. We see no basis to interfere with it.

(2) Yes. It is well established that a costs award should be set aside on appeal only if the motion judge erred in principle or the award was plainly wrong: Davies v. Clarington, 2009 ONCA 722, at para. 27.

The motion judge erred in failing to award any costs to the appellant and that the error justifies appellate intervention. While an award of costs is always discretionary and the court has the discretion not to award any costs to the successful party, the latter discretion should be exercised sparingly. The general principle that a successful party is entitled to costs should not be departed from except for very good reasons. Examples of the exceptional instances where such an order has been made include: misconduct of the parties; miscarriage in the procedure; or oppressive and vexatious conduct of proceedings. (See: 1318706 Ontario Ltd. v. Niagara (Regional Municipality), [2005] O.J. No. 1907, at para. 50.)

Here, the motion judge erred by depriving the successful party of her partial indemnity costs for conduct that did not rise to the level of misconduct that would justify such a punitive order. It was neither fair, proportionate nor reasonable for the motion judge to deprive the appellant of all of her costs.

Royal Host GP Inc. v. 1842259 Ontario Ltd., 2018 ONCA 467

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

Counsel:

J C. Lisus and A J. Winton, for the appellant

D Rabinowitz and S D McGarry, for the respondents

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Covenant to Insure, Tenant Negligence, Fire, Subrogation, Agnew-Surpass v. Cummer-Yonge, [1976] 2 S.C.R. 221, Ross Southward Tire v. Pyrotech Products, [1976] 2 S.C.R. 35, T. Eaton Co. v. Smith et al., [1978] 2 S.C.R. 749

Facts:

The appellant owns a multi-story commercial building in which it operates a hotel. The respondents leased a portion of the building in which they operated a restaurant. A fire broke out in the respondents’ kitchen causing extensive damage to the building. The appellant was indemnified by its insurer for its losses and its insurer commenced this subrogated action, in the appellant’s name, seeking recovery of the damages suffered. The action alleges the fire was caused by the respondents’ negligence.

The respondents took the position that even if the fire were caused by their negligence, the terms of the lease prevented the appellant from bringing this action. The respondents brought a motion by way of special case seeking determination of whether the lease bars the plaintiff’s insurer from bringing a subrogated action for damages in the name of the plaintiff, as against defendants. Section 7.02 of the Lease provided as follows:

The Landlord shall take out and maintain, to the full replacement value, fire and other hazard insurance, as the Landlord in its sole discretion may deem advisable, on the Building, excluding any property thereon with respect to which the Tenant or other tenants are obliged to insure, and its own general liability insurance, including general liability insurance in respect of the Common Areas in an amount no less than $10,000,000.00 in respect of any injury to or death of one or more persons and loss or damage to the property of others, the costs of which shall be included in Common Expenses.

Notwithstanding the Landlord’s covenant contained in this Section 7.02, and notwithstanding any contribution by the Tenant to the cost of any policies of insurance carried by the Landlord, the Tenant expressly acknowledges and agrees that

  • the Tenant is not relieved of any liability arising from or contributed to by its acts, fault, negligence or omissions, and
  • no insurance interest is conferred upon the Tenant, under any policies of insurance carried by the Landlord, and
  • the Tenant has no right to receive any proceeds of any policies of insurance carried by the Landlord.

The motion judge concluded that the language in s. 7.02 referring to the tenant’s negligence did not create a right of subrogation for the landlord’s insurer and so dismissed the action. The motion judge had based their analysis on a trilogy of Supreme Court decisions, namely: Agnew-Surpass v. Cummer-Yonge, [1976] 2 S.C.R. 221, Ross Southward Tire v. Pyrotech Products, [1976] 2 S.C.R. 35, and T. Eaton Co. v. Smith et al., [1978] 2 S.C.R. 749.

Issues:

(1) Did the motion judge err in concluding that the language in s. 7.02 referring to the tenant’s negligence did not create a right of subrogation for the landlord’s insurer?

Holding:

Appeal allowed.

Reasoning:

(1) In this case, there was an agreed statement of facts and the motion judge’s reasoning was restricted to the interpretation of the wording of the lease in light of the legal principles enunciated in the trilogy. The motion judge’s analysis erred in principle by proceeding as if the Supreme Court, in the trilogy, pronounced a rule of general application. The motion judge repeatedly referred to “the general rule”. The starting point for the analysis is that in the trilogy the Supreme Court did not enunciate freestanding principles. The principles drawn from the trilogy are contractual in nature. They are conclusions that flow from and reflect the particular provisions of the leases that were in issue in those cases. In the trilogy, the Supreme Court determined that it is the terms of the lease that establish the rights and obligations between landlord and tenant, and not the insurance policy. The trilogy has not affected the fundamental tenet of contractual interpretation that it is necessary to discern the intentions of the parties in accordance with the language they have agreed to in the contract. The motion judge recognized that his task was to interpret the lease in accordance with the intentions of the parties, but he allowed the principles of the trilogy to override the plain language of the lease.

The first part of s. 7.02 of the lease in this case both obligates the landlord to purchase and maintain fire insurance on the building and requires the tenant to pay its proportionate share of the cost of such insurance. Section 7.02 continues with a “notwithstanding” provision. The plain meaning of s. 7.02 of the lease considered in isolation is that the tenant remains liable for its own negligence notwithstanding the landlord’s covenant to purchase insurance and the tenant’s contribution for the cost of that insurance.

The lease must be interpreted in accordance with the language the parties have used. In law, a tenant is liable for damage caused by its negligence. The question is whether the parties to a lease have contracted that the ordinary principles of negligence law will not apply and the tenant will not be liable to the landlord for damages caused by its negligence. Here, the Court of Appeal has found that the parties have not done so.

Lang Michener LLP v. King, 2018 ONCA 471

[Brown, Huscroft and Trotter JJ.A.]

Counsel:

GK, acting in person

Gavin Tighe and Robert Winterstein, for the respondent

Keywords: Contracts, Solicitor and Client, Torts, Solicitor’s Negligence, Costs

Facts:

The appellant, GK, a lawyer, appeals from the order granting summary judgment dismissing his counterclaim against the respondent, Lang Michener LLP.

In 2007, Mr. K retained Lang Michener to defend him in proceedings commenced by the trustee of a bankrupt Italian company, Sincies Chiementin SpA (“Sincies”), to enforce a judgment issued by an Italian court on October 1, 2001 against Mr. K (the “Italian Judgment”). The amount of the Italian Judgment was US$600,000, plus interest, currency appreciation and costs. Following a four day hearing, Whalen J. granted the trustee summary judgment recognizing and enforcing the Italian Judgment (the “Enforcement Judgment”): 2010 ONSC 6453.

The Court of Appeal dismissed Mr. K’s appeal from the Enforcement Judgment: 2012 ONCA 653. Mr. K’s request for leave to appeal to the Supreme Court of Canada was denied: [2012] S.C.C.A. No. 516.

In March 2011, Lang Michener commenced an action against Mr. K seeking payment of its fees for services rendered in the enforcement proceeding. Mr. K counter-claimed and sought judgment against Lang Michener in the amount he owed under the Italian Judgment, together with all legal fees and other costs he had incurred in defending the trustee’s enforcement and recognition claim. The motion judge granted summary judgment dismissing Mr. K’s counterclaim. Mr. K appealed.

Mr. K limits his appeal to the motion judge’s dismissal of the part of his counterclaim alleging negligent advice given by Lang Michener in 2008 in respect of a possible claim against LawPro. Mr. K also seeks leave to appeal the motion judge’s award of costs of $45,000 against him.

Issues:

(1) Did the motion judge err in dismissing the appellant’s counterclaim alleging negligent advice given by Lang Michener?

(2) Did the motion judge err in awarding costs of $45,000 against the appellant?

Holding: Appeal dismissed.

Reasoning:

(1) No. The motion judge made no error in finding the Italian court had specifically declined to take jurisdiction over Mr. K in relation to allegations of professional liability. That finding was firmly anchored in the reasons of the Italian court.

Coverage under the Policy was only available for liability resulting from an error, omission or negligent act “in the performance of or the failure to perform PROFESSIONAL SERVICES for others.” The Italian Judgment was clear that Mr. K’s liability was not in respect of professional services he had rendered. Accordingly, the court saw no error in the motion judge’s conclusion, at para. 52 of his reasons, that “regardless of the advice that was given by Kelly, [Mr.] K has suffered no damages: he would have lost an action against LawPro, and so his failure to start such a lawsuit after LawPro denied coverage in November 1997 has cost him nothing.”

(2) No. Leave to appeal costs was granted, but the costs awarded were reasonable and therefore the court did not interfere.

Correct Building Corporation v. Lehman, 2018 ONCA 462

[Pepall, Trotter and Paciocco JJ.A.]

Counsel:

R. Krupnyk, for the appellants/respondents by way of cross-appeal

R. J. Horst and R. Szymanski, for the respondents/appellants by way of cross-appeal R. S. and Indicom Appraisal Associates Ltd.

A. Formosa and F. Bogach, for J. L., Jon Babulic, R. Forward, J. Foster, C. Magwood, E. Archer, D. McKinnon, J. Robinson, A. Nuttal, J. Moore, and M. Prowse

Keywords: Torts, Negligent Misrepresentation, Fraudulent Misrepresentation, Conspiracy, Negligence, Inducing Breach of Contract, Wrongful Interference with Economic Relations, Summary Judgment

Facts:

The appellant was negotiating with the City of Barrie and the YMCA to finalize an agreement of purchase and sale of a property. The City requested a quotation from Indicom, the respondent, to assist the City in negotiations for the potential sale of the property.

The respondents provided the City with an appraisal wherein they warned that a change in assumptions might change the stated value. The appraisal also contained limitations on use and certain limiting conditions. The respondents noted that no environmental factors affecting the property had been considered.  The respondents cautioned that if placing reliance on the report, an expert qualified in environmental issues should be retained.  In addition, the respondents noted in the report that an archeological survey had not been completed.

The appellant saw the appraisal and thought it contained a major flaw and offered to purchase the property for an amount less than the appraisal amount. The City rejected this offer. The appellant then brought an action stating that it continued pointless negotiations with the City in reliance on the respondent’s appraisal. On a summary judgment motion, the appellant’s claim for negligent and fraudulent misrepresentation and conspiracy were dismissed. The judge ordered a mini-trial on whether the limitation period for a claim of negligence, inducing breach of contract, and wrongful interference with economic relations had expired. Both sides appealed.

Issues:

(1) Did the motion judge err in dismissing the claims for misrepresentation?

(2) Did the motion judge err in ordering a mini-trial on whether the limitation period for a claim of negligence, inducing breach of contract, and wrongful interference with economic relations had expired?

Holding:

Appeal dismissed. Cross-appeal allowed.

Reasoning:

(1) No. The appellants did not rely on the appraisal nor did the appraiser expect anyone other than the City to rely on the appraisal.

(2) Yes. The issues identified for the mini-trial would have changed nothing. The limitation period commenced on August 26, 2010, when the appellant wrote to the City complaining about the appraisal. The motion judge found there was no reliance, evidence of any purpose or intention to injure the appellant and no evidence of unlawful conduct by the respondents. Therefore the claims for inducing breach of contract and wrongful interference with economic relations have no possibility of success. Those claims were therefore dismissed as well.

Short Civil Decisions

Di Battista Gambin Developments Limited v. Brampton (City), 2018 ONCA 457

[Rouleau, Roberts and Fairburn JJ.A.]

Counsel:

Robert D. Malen, for the appellant

Signe Leisk and Melissa Winch, for the respondent

Keywords: Real Estate, Application, Interpretation of Subdivision Agreement, Transfer, Land Parcels

Mori Essex Nurseries Inc. v. Northbridge General Insurance Corporation, 2018 ONCA 452

[Rouleau, Roberts and Fairburn JJ.A.]

Counsel:

Anne Juntunen, for the appellants

William Chalmers, for the respondents

Keywords: Insurance Coverage, Commercial General Liability Policy, Care and Custody Exclusion

Apotex Inc. v. Abbott Laboratories Limited, 2018 ONCA 466

[Strathy C.J.O., Juriansz and Huscroft JJ.A. ]

Counsel:

Steven G. Mason and David A. Tait for the appellant Abbott Laboratories Ltd.

Christopher C. Van Barr and Kiernan Murphy for the appellant

Takeda parties Andrew R. Brodkin and Michael A. Wilson for the respondent

Keywords: Civil Procedure, Costs, Partial Indemnity

Gulf Developments Inc. v. Essex (Town), 2018 ONCA 465

[Lauwers, Benotto and Nordheimer JJ.A.]

Counsel:

James K. Ball, for the appellant

Rodney M. Godard and Ioana Vacaru, for the respondents

Keywords: Contracts, Construction, Tendering, Bid Shopping, Martel Building Ltd. v. Canada, 2000 SCC 60, [2000] 2 S.C.R. 860, R. (Ont.) v. Ron Engineering, [1981] 1 S.C.R. 111

Design Filtration Microzone Inc. v. Cunningham, 2018 ONCA 468

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

Counsel:

Nigel McCready, for the appellant Bruce Sevigny, for the respondent

Keywords: Employment Law, Wrongful Dimissal, Notice Period, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Criminal and Regulatory Offences

Ontario (Ministry of the Environment and Climate Change) v. Sunrise Propane Energy Group Inc., 2018 ONCA 461

[Trotter J.A. (Motions Judge)]

Counsel:

Leo Adler, for the applicants

Nicholas Adamson and Justin Jacob, for the respondent

Keywords: Environmental Law, Leave to Appeal, Section 186(1), Section 186(2), Section 194(2), Environmental Protection Act, R.S.O. 1990, c. E.19, Section 25(2)(a) and (h), Occupational Health and Safety Act, R.S.O. 1990, c. O.1, section 131, Provincial Offences Act, R.S.O. 1990

Facts:

On August 10, 2008, a series of explosions rocked the north end of Toronto. They occurred at a propane gas facility operated by Sunrise Propane Energy Group Inc. (“Sunrise”) during a “truck-to-truck transfer” (“TTT”) where a large propane truck was transferring propane to a smaller truck. The spread of heat caused other propane tanks at the facility to explode. This resulted in numerous contaminants being discharged into the environment including heat, vibration, sound, gas vapour, asbestos, smoke, dust, metal fragments, and other debris. It forced the immediate evacuation of approximately 12,000 people from their homes while the fire persisted at the facility. Displaced residents suffered lost wages and had to pay for temporary shelter and clothing. The explosions caused major structural damages to homes and businesses in the area. There was one death and others were injured.

The applicants, Sunrise Propane Energy Group Inc., 1367229 Ontario Inc., Shay Ben-Moshe and Valery Belahov, were charged under ss. 186(1), 186(2), and 194(2) of the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”) for discharging contaminants into the environment (in violation of s. 14) and failing to comply with lawful orders issued to address the clean-up. They were also charged under ss. 25(2)(a) and (h) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) for failing to properly train and ensure the safety of its employees.

After a 14-day trial, the applicants were convicted of nine provincial offences. They were collectively ordered to pay fines totalling $5.3 million. Appeals of both the convictions and sentences were dismissed.

The applicants sought to invoke the jurisdiction of the Court of Appeal to review their convictions and sentences. However, they were first required to seek leave to appeal.

Issues:

(1) Should the court grant the applicant’s leave to appeal?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court stated that leave to appeal to the Court of Appeal in the provincial offences context is only permitted on questions of law that are essential in the public interest or for the due administration of justice in the province.

The applicants already had a full appeal to the Superior Court of Justice and a further appeal to this court is not automatic. The court stated that leave to appeal is required under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”), which sets the bar very high and has been granted sparingly.

The applicants proposed two grounds of appeal. The first ground relates to the defence of officially induced error.

Well before the incident, Donald Heyworth, a TSSA inspector, attended at Sunrise on a couple of compliance visits. He ordered Sunrise to comply with the Director’s Public Safety Order prohibiting TTTs, except at a licensed “bulk plant.” Discussions were held about upgrading the Sunrise facility to permit TTTs. As he was leaving Sunrise one day, someone asked Mr. Heyworth, “Can we continue operating?” He replied, “Yes.” At trial he explained that he meant that Sunrise could continue to transfer propane from trucks to stationary tanks, and then fill cylinders from those tanks.

In June 2007, the TSSA issued a Code Adoption Document, which was posted to its website on June 14, 2007. The Document prohibited TTTs unless the facility was a bulk plant. There was no evidence of anyone purporting to give the applicants an exemption from the requirements set out in this Document.

The trial judge found that the applicants could rely on an officially induced error, but only up to the date where the code adoption document was issued in June of 2007 which prohibited the truck-to-truck transfers.

The appeal judge found no error in the trial judge’s application of this doctrine and the court of appeal also found no error.

The applicants’ second ground of appeal related to the enforcement of the Order issued in the aftermath of the explosions. The court held that this ground of appeal turned on whether the trial judge properly interpreted the Order. However, this was a question of mixed fact and law, not one of law alone. Even if it was construed as an error of law, it had not been demonstrated that the interpretation of the administrative/enforcement Order issued in this case was essential in the public interest or for the due administration of justice in the province.

R v Al Ubeidi, 2018 ONCA 463

[MacFarland, Watt and Paciocco JJ.A.]

Counsel:

Howard Piafsky, for the appellant

Evan Weber, for the respondent

Keywords: Criminal, Evidence Constructive Possession, Circumstantial Evidence, Error of Law

R v Hungwe, 2018 ONCA 456

[LaForme, Watt and Nordheimer JJ.A]

Counsel:

Michael Davies and Meaghan McMahon, for the appellant, Dennis Hungwe

Anthony J. Does, for the appellant, Christian Nkusi

Howard L. Krongold, for the appellant, Moussa Daoui

John Hale, for the appellant, Richard Issachar Ellis

Jonathan Dawe, for the appellant, Geovanni Nicholas Ellis

Andreea Baiasu, for the respondent

Keywords: Criminal Procedure, Robbery, Jury Charge, Questioning Witnesses, Prior Consistent Statement’

R v SC, 2018 ONCA 454

[Rouleau, Tulloch and Fairburn JJ.A]

Counsel:

R. C., acting in person

Julianna Greenspan, appearing as duty counsel

Deborah Krick, for the respondent

Keywords: Publication Ban, Evidence, Sexual Assault, Similar Fact Evidence

R v Higgins, 2018 ONCA 451

[Feldman, Roberts and Trotter JJ.A.]

Counsel:

Melissa Adams, for the appellant

Mark Halfyard, for the respondent

Keywords: Criminal, Dangerous Driving Causing Bodily Harm, Mens Rea, s. 249(1) of the Criminal Code

R v Notaro, 2018 ONCA 449

[Feldman, Paciocco and Fairburn JJ.A.]

Counsel:

Peter Lindsay, for the appellant

Kevin Rawluk, for the respondent

Keywords: Criminal, Accuracy of Blood Alcohol Breath Test, Residual Alcohol in Mouth

R v Vorobiov, 2018 ONCA 448

[Laskin and Pepall JJ.A. and Gans J.]

Counsel:

Scott Hutchison and Apple Newton-Smith, for the appellant

Eric Siebenmorgan and Rachel Young, for the respondent

Keywords: Criminal, Murder Plot, Evidence, Cross-Examination, Browne v. Dunn Instruction, Conduct After Murder

R v Dawson, 2018 ONCA 458

[MacFarland, Watt and Paciocco JJ.A.]

Counsel:

Breana Vandebeek, for the appellant

Craig Harper, for the respondent

Keywords: Criminal, Drug and Weapon Possession, Judicial Notice, Exculpatory Statement

R v Groskopf, 2018 ONCA 455

[Brown J.A.]

Counsel:

Dano Sahulka and Efstathios Balopoulos, for the applicant

Susan Magotiaux, for the respondent

Keywords: Criminal, Sexual Assault and Exploitation, Public Interest, Criminal Code, s. 679(3)(c)

R v Jackson, 2018 ONCA 460

[Doherty, Epstein and Pepall JJ.A.]

Counsel:

Rebecca De Filippis, for the appellant

Ian Carter, for the respondent

Keywords: Criminal Law, Impaired Driving, Summary Conviction, Standard of Review, Criminal Code, s. 253(1)(a)

R v Lawrence, 2018 ONCA 464

[Doherty, Epstein and Pepall JJ.A.]

Counsel:

Ian Carter, for the appellant

Rebecca De Filippis, for the respondent

Keywords: Criminal Law, Aggravated Assault

R v CL, 2018 ONCA 470

[Trotter J.A.]

Counsel:

David J. D’Intino, for the applicant

Susan Magotiaux, for the respondent

Keywords: Criminal Law, Sexual Assault, Bail, Public Interest

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