ONTARIO COURT OF APPEAL SUMMARIES (JULY 3-6)

Good afternoon.

As expected at this time of year, it was a quiet week at the Court of Appeal for Ontario.

There were only two substantive civil decisions. In Da Silva v Gomes, the motion judge had dismissed, by way of summary judgment, a claim against a soccer club, its representatives, and its governing association for allegedly failing to prevent a player from assaulting another player during a game. The Court of Appeal upheld the lower court’s decision, as there was no evidence to suggest that the assault was reasonably foreseeable. Supervising authorities are not legally responsible for sudden, unexpected events that occur during an acceptable and safe activity.

In Manorgate Estate Inc. v Kirkor Architects and Planners, a builder entered into a design agreement with an architect that contained an entire agreement clause. The builder alleged that it entered into the agreement on the basis of misrepresentations by the architect as to the anticipated costs of the project. The project exceeded budget and the builder sued the architect. The motion judge dismissed the claim by way of summary judgment on the basis of the entire agreement clause, which excluded claims in respect of any representations not contained in the agreement. The Court of Appeal upheld the motion judge’s decision and dismissed the appeal.

There were several criminal decisions released this week, together with an Ontario Review Board decision and a decision quashing an appeal in a child custody case for want of jurisdiction.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com

Table of Contents

Da Silva v Gomes, 2018 ONCA 610

Keywords: Torts, Negligence, Occupiers Liability, Civil Procedure, Summary Judgment, Occupiers Liability Act,RSO 1990, c 0 2

Manorgate Estates Inc. v Kirkor Architects and Planners, 2018 ONCA 617

Keywords: Contracts, Misrepresentation, Entire Agreement Clauses,  Contratual Interpretation, Standard of Review, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37

For short civil decisions click here

For criminal decisions click here

Da Silva v Gomes, 2018 ONCA 610

[Epstein, Lauwers and van Rensburg JJA]

Counsel:

D D’Urzo, for the appellants

K Kwinter, for the respondents other than BG

Keywords: Torts, Negligence, Occupiers Liability, Civil Procedure, Summary Judgment, Occupiers Liability Act,RSO 1990, c 0 2

Facts:

In the course of a soccer game, BG punched MDS. BG was criminally convicted for the assault. MDS was injured and he and his family brought their claims under the Family Law Act, RSO 1990, c F 3, against BG, the Hamilton Sparta Sports Club for which BG played, the Ontario Soccer Association Incorporated, under whose auspices the game was played, and several other associated individuals.

The motion judge granted summary judgment dismissing the action against the respondents other than BG. The plaintiffs appealed.

Issues:

(1) Did the motion judge err in finding that the respondents were not negligent in their supervision of the game, and breached several standards of care, including the standard for coaches, for on-field supervision and for player conduct?

(2) Did the motion judge err in finding that the respondents were not liable under the Occupiers Liability Act,RSO 1990, c 02 for failing to ensure that the playing field was safe?

(3) Did the motion judge err in finding that these arguments on the evidence did not raise genuine issues requiring a trial?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellants have not shown that the motion judge made any palpable and overriding errors. The appellants’ case rests on proving the claim that BG’s previous conduct showed a risk that he would commit violence against an opposing player and that his coach, his team and the Association were negligent in permitting him to play. The motion judge rejected this claim at para 74: “Based on the material before the court, there is no evidence that BG acted in a physically aggressive or violent manner during a soccer game prior to the [incident date]”.

On the issue of the standard of care, the motion judge noted that the appellants had not proven their case at para 78: “BG’s evidence was that he knew he was not to punch other players. His evidence was that he assaulted MDS impulsively. Based on BG’s evidence, even if there was a code of conduct and even if he was made aware of it, it would not have prevented him from engaging in behaviour that was so beyond the realm of what is reasonable. He assaulted MDS and was convicted of an offence which resulted in a suspension from the league.”

With respect to the issue of causation, the motion judge found, at para 94:

Based on the evidence, I am unable to conclude that the lack of or improper discipline would have deterred BG such that the assault upon MDS would not have occurred. BG’s evidence was that he knew he could not punch another player but did so anyways. His evidence was that the assault was not premeditated and, in fact, was an unprovoked and impulsive act.

As for the applicable law, the motion judge relied on the school board cases. The law is clear that supervising authorities are not legally responsible for “a sudden unexpected event in the midst of an acceptable, safe activity”: Patrick v St. Clair Catholic District School Board[2013] OJ No 6216, at para 266.

(2) No. The motion judge made no palpable or overriding error in her finding that there was (a) no evidence of “any site safety issues or that the playing field was not safe” and (b) no evidence that the respondents were in breach of any obligation owed under the Act (para. 65).

(3) No. The motion judge made no error in the consideration and application of the test for summary judgment. The appellants’ case foundered on the absence of evidence, that the case was not complex and the key facts were not in dispute, and that there were no credibility issues to resolve.

Manorgate Estates Inc. v Kirkor Architects and Planners, 2018 ONCA 617

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

Counsel:

Michael Simaan, for the appellants

Charles Simco and Matthew Urback, for the respondent

Keywords: Contracts, Misrepresentation, Entire Agreement Clauses,  Contratual Interpretation, Standard of Review,Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37

Facts:

The appellants (“Manorgate”) build residential homes. The respondent (“Kirkor”) is an architectural consulting firm retained by Manorgate to assist with a construction project. Manorgate entered into an agreement (the “First Agreement”) with Kirkor under which Kirkor agreed to provide design services for a project involving the construction of 12 townhouses (the “smaller project”).

After the First Agreement was executed, the City of Toronto advised Manorgate that it would prefer a higher density development at the planned location. The proposed project was then changed to 24 townhomes (the “larger project”). Manorgate’s principal met with a senior partner of Kirkor to discuss this new concept. After this meeting, the parties entered into a design agreement with respect to the larger project (the “Second Agreement”).

Both agreements contained a clause precluding Manorgate from suing Kirkor based on any pre-contractual representations (the “Entire Agreement Clause”).

Manorgate says that at the meeting, Kirkor’s representative represented to Manorgate’s representative that the larger project would cost approximately $130 per square foot (the “Alleged Negligent Misrepresentation”). Manorgate alleges that the actual cost per square foot of the larger project turned out to be significantly higher than $130, such that the larger project was no longer financially viable.

Manorgate claimed that it entered into the Second Agreement in reliance on the Alleged Negligent Misrepresentation. It therefore brought this proceeding based on the Alleged Negligent Misrepresentation for approximately $530,000.

Kirkor denied the representation. In the alternative, Kirkor relied on the Entire Agreement Clause in the Second Agreement to preclude liability for any pre-contractual representations. Kirkor moved for summary judgment.

The motion judge found that it was not necessary to decide whether Kirkor made the Alleged Negligent Misrepresentation. She granted summary judgment dismissing the action, concluding that the Entire Agreement Clause in the Second Agreement operated as a complete defence to Manorgate’s claim.

Issues:

  1. Did the motion judge err in giving effect to the entire agreement clause?

(a)  In that regard, did the motion judge err in determining that the Entire Agreement Clause was broad enough to exclude the Alleged Negligent Misrepresentation?

  1. Did the motion judge err in her interpretation of the provision of the Second Agreement excluding detailed estimates of construction costs from the services provided?
  2. Did the motion judge err in failing to find a triable issue as to whether the Entire Agreement Clause should be unenforceable on the basis that it was unconscionable and against public policy?
  3. Did the motion judge err in failing to enforce a duty of good faith between the parties?

Holding: Appeal dismissed.

Reasoning:

  1. The court stated that critical to the motion judge’s conclusion was her finding that the Second Agreement was not a continuation of the First Agreement but an entirely new agreement. It followed that the Entire Agreement Clause contained in the Second Agreement superseded the Alleged Negligent Misrepresentation, with the effect that Manorgate was not entitled to rely on the representation even if it had been made by Kirkor.

The court stated that while correctly identifying the substantive requirements for the formation of a valid contract is an issue of law, applying those requirements to a given fact scenario and interpreting the language of two apparent agreements raises questions of mixed law and fact: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, at paras. 49-51, 53.  The court found that the motion judge’s determination that the First Agreement and Second Agreement were two separate contracts was a finding of mixed law and fact based on the record before her, and that the finding is entitled to deference on appeal.

(a) No.  The court stated that Manorgate’s argument hinged on its position that the two agreements are standard form contracts and therefore the motion judge’s finding is to be reviewed on a standard of correctness. The court found that although the agreements were not amended prior to signature, they were not standard form agreements of the nature contemplated by the Supreme Court of Canada in Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37. On Manorgate’s evidence, the agreements were open to being amended prior to signing. The court stated that the motion judge’s interpretation that the Second Agreement, specifically the Entire Agreement Clause, was broad enough to apply to the Alleged Negligent Misrepresentation, is an exercise in contractual interpretation entitled to deference: Ledcor, at para. 21.

  1. The court stated that the motion judge referred to a provision in rejecting the argument made before her that preliminary costing was part of the services Kirkor was to perform. She stated, at para 44: I reject the plaintiff’s argument that the use of the word “detailed” implies that preliminary or high level costing forms part of the contract. Nothing else in the contract supports such an interpretation. The court found no error.
  2. The court stated that the motion judge made no error in failing to find a triable issue as to whether the Entire Agreement Clause should be unenforceable on the basis that it was unconscionable and against public policy.
  3. The court rejected Manorgate’s argument concerning the motion judge’s failure to enforce a duty of good faith between the parties, stating that it was not properly raised at first instance on appeal.

Criminal, Provincial Offences, and Ontario Review Board Decisions

R v MP, 2018 ONCA 608

[Watt, Brown and Huscroft JJA]

Counsel:

Jonathan Shime, for the appellant

Andrew Hotke, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Evidence, Admissibility, Criminal Code, s 271, s 686(1)(b)(iii), R v W(D), [1991] 1 SCR 742

R v Sadikov, 2018 ONCA 609

[Lauwers, van Rensberg and Nordheimer JJA]

Counsel:

Dirk Derstine and Karen Heath, for the appellant

Amber Pashuk and Amanda Hauk, for the respondent

Keywords: Criminal Law, Drug Trafficking, Possession of a Firearm, Sentencing, Canadian Charter of Rights and Freedoms, s 8, R v Keinapple, [1975] 1 SCR 729, R v Teskey, 2007 SCC 25, R v Willaroman, 2016 SCC 33

Caron (Re), 2018 ONCA 613

[Doherty, Rouleau and Fairburn JJA]

Counsel:

Ian McCuaig, for the appellant

Joe Hanna, the Attorney General of Ontario

Jacquie Dagher, for the respondent

Keywords: Criminal Law, Ontario Review Board, NCR, Threat to Cause Bodily Harm, Threat to Cause Death, Supervised Access

Short Civil Decisions

Williams v. Young, 2018 ONCA 611

[Feldman, Hourigan and Brown JJA]

Counsel:

Benjamin Nielsen, for the moving party/respondent

Shawn Philbert, for the responding party/appellant

Keywords: Family Law, Custody, Civil Procedure, Appeals, Jurisdiction, Courts of Justice Act, s 21.9.1

R v DA, 2018 ONCA 612

[Sharpe, Brown and Paciocco JJA]

Counsel:

Peter Copeland, for the appellant

Michael Perlin, for the responding respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Criminal Code, s. 271, R v W(D), [1991] 1 SCR 742, R v JJRD(2006), 218 OAC 37

R v Laverdure, 2018 ONCA 614

[Doherty, Rouleau and Fairburn JJA]

Counsel:

Jodie-Lee Primaeu, for the appellant

Elana Middlekamp, for the respondent

Keywords:Criminal Law, Dangerous Driving Causing Death, Actus Reus, Mens Rea, Criminal Code, S. 249, R v Beatty, [2008] 1 SCR 49

R v Richards, 2018 ONCA 618

[Doherty, MacPherson and Rouleau JJA]

Counsel:

Najma Jamaldin, for the appellant

Deborah Krick, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, S. 231(5)(e), Evidence, R v Kimberley(2001), 56 OR (3d) 18 (CA)

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