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

03 avril 2018
John Polyzogopoulos

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Good evening.

In Schnarr v. Blue Mountain Resorts Limited, the Court determined that occupiers of recreational properties, such as ski resorts, are entitled to include limitation of liability clauses in their contractual terms with visitors. Such clauses are expressly permitted by the Occupier’s Liability Act. The Court further determined that these clauses are not prohibited by the Consumer Protection Act, even if such agreements are consumer agreements. The case was decided on the basis of principles of statutory interpretation applicable where two legislative provisions conflict with one another.

Other topics covered this week included a priority dispute between insurers in a SABs case, the tort of misfeasance in public office in the context of a challenge to a governmental policy decision (the partial privatization of Hydro One), solicitor negligence, discharges from bankruptcy, slip and fall, the duty of disclosure of litigation agreements in the nature of Mary Carter or Pierringer agreements, breach of fiduciary duty of a departing employee, offers to settle and administrative dismissals of appeals for delay.

About the Authour

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2953

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313

Keywords: Contracts, Limitation of Liability (Exclusion) Clauses, Enforceability, Torts, Negligence, Occupier’s Liability, Consumer Protection, Consumer Agreements, Statutory Interpretation, Conflicting Statutes, Ejusdem Generis, Expressio Unius Est Exclusio Alterius, Exhaustiveness Doctrine, Generalia Specialibus Non Derogant, Absurdity Doctrine, Occupiers’ Liability Act, ss. 3 & 9, Consumer Protections Act, ss. 1, 7, 9 & 93

Cosolo v. Geo. A. Kelson Company Limited, 2018 ONCA 318

Keywords: Contracts, Employment, Breach of Fiduciary Duty, Breach of Confidence, Summary Judgment

Tondat v. Hudson’s Bay Company, 2018 ONCA 302

Keywords: Torts, Negligence, Occupier’s Liability, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, section 3(1)

Kuczera (Re), 2018 ONCA 322

Keywords: Bankruptcy and Insolvency, Conditional Discharges, Absolute Discharges, Consumer Proposals, Fresh Evidence, Expert Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, Re Moore, 2013 ONCA 769, 118 O.R. (3d) 161, R v. Mohan, [1994] 2 S.C.R. 9, Westerhof v. Gee Estate, 124 O.R. (3d) 721, 2015 ONCA 206, R. v. Palmer, [1980] 1 S.C.R. 759

Bone Safety Signs, LLC v. Work Zone Safety Products Inc., 2018 ONCA 301

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49, Foreign Currency Obligations, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 121

Hibbert v. McGoogan, 2018 ONCA 310

Keywords: Torts, Negligence, Solicitors, Summary Judgment, Standard of Proof, No Genuine Issue Requiring Trial

Brown v. Peel Mutual Insurance Company, 2018 ONCA 316

Keywords: Civil Procedure, Appeals, Administrative Dismissal for Delay, Extension of Time, Sickinger v. Sickinger, 2017 ONCA 760, Sault Dock Co. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.).

Canadian Union of Public Employees v. Ontario, 2018 ONCA 309

Keywords: Torts, Misfeasance in Public Office, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Justiciability, Exercise of Executive Authority, Matters of Core Policy, Immunity from Suit, Rules of Civil Procedure, R. 21

The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303

Keywords: Insurance Law, Statutory Accident Benefits, Insurers, Priority Dispute, Arbitrations, Questions of Law, Standard of Review, Reasonableness, Intact Insurance Company v. Allstate Insurance Company of Canada, 2016 ONCA 609, 131 O.R. (3d) 625, Belairdirect Insurance v. Dominion of Canada General Insurance Co. (Travelers), 2018 ONCA 101, Insurance Act, R.S.O. 1990, c. I.8, Arbitration Act, 1991, S.O. 1991, c. 17., Disputes Between Insurers, O. Reg. 283/95

Handley Estate v. DTE Industries Limited, 2018 ONCA 324

Keywords: Civil Procedure, Settlements, Duty to Disclose, Mary Carter Agreements, PierringerAgreements, Remedies, Stay of Proceedings, Aecon Buildings v. Stephenson Engineering Limited, 2010 ONCA 898

North Bay (City) v. Vaughan, 2018 ONCA 319

Keywords: Provincial Offenses, Provincial Offences Act, R.S.O. 1990, c. P.33, s.131, Leave to Appeal

For Short Civil Decisions click here.

For Criminal Decisions click here.

For Ontario Review Board Decisions click here.

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313

[Doherty, Brown and Nordheimer JJ.A.]

Counsel:

John A. Olah and Robert A. Betts, for the appellant, Blue Mountain Resorts Limited

Edward Chadderton, Patricia E. Graham, and Jeffrey Belesky, for the respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. aka Ski Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, and 717350 Ontario Ltd. (collectively, “Snow Valley”)

Paul J. Pape, Shantona Chaudhury, and Peter Cho, for the respondent, David Schnarr

Paul J. Pape, Shantona Chaudhury, Marc Lemieux, and Ryan Hurst, for the appellant/respondent by cross-appeal, Elizabeth Woodhouse

Peter Pliszka and Zohar Levy, for the interveners, Conservation Halton, Credit Valley Conservation, and Toronto Region Conservation

Robert Love, Edona Vila, and Samantha Bonanno, for the interveners, The Ontario Federation of Snowmobile Clubs and Ontario Cycling Association

Jim Tomlinson and Garett Harper, for the intervener, Canadian Defence Lawyers

Thomas Curry and Ahmad Mozaffari, for the intervener, Tourism Industry Association of Ontario

Judie Im and Baaba Forson, for the intervener, Minister of Government and Consumer Services

Derek Nicholson, for the intervener, Ontario Trial Lawyers Association

Facts:

These two appeals were heard together as they raise common issues. In both cases, the plaintiffs were patrons of the defendant ski resorts who purchased ski tickets. In both cases, those patrons executed the ski resorts’ waivers of liability as a condition of their tickets. And in both cases, the patrons were injured on the ski resorts’ premises. The patrons sued.

On a r. 21 motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in the case of Mr. Schnarr, the parties agreed that there was a “consumer agreement” (as defined under s. 1 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (“CPA”)) between Mr. Schnarr and Blue Mountain Resorts Limited (“Blue Mountain”). On that basis, Tzimas J. held that Blue Mountain’s waiver under s. 3(3) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”) partially offended ss. 7(1) and 9(3) of the CPA. She held that Blue Mountain’s waiver, insofar as it purported to waive liability in contract, was void and severed from the consumer agreement.

In a similar vein, in the case of Ms. Woodhouse on a r. 22 motion, McCarthy J. held that Snow Valley’s waiver was void in respect of both tort and contract claims. However, he held that a court nevertheless had the equitable power to enforce a void waiver in a consumer agreement pursuant to s. 93(2) of the CPA. It is important to note that, aside from the agreed statement of facts submitted by the parties, none of the underlying facts have yet been proven in court.

Blue Mountain and Ms. Woodhouse appeal. Snow Valley cross-appeals. Foremost, these appeals raise the question of whether the CPA or the OLA governs the relationship between the parties. Specifically, the appeals present a case of first impression as to whether ss. 7 and 9 of the CPAvitiate or void an otherwise valid waiver of liability under s. 3 of the OLA, where the party seeking to rely on the waiver is both a “supplier” under the CPA and an “occupier” under the OLA.

Issues:

(1) Does s. 9 of the CPA conflict with s. 3 of the OLA? If so, how should each statute be interpreted and what effect should be given to the impugned provisions?

(3) Does s. 93(2) of the CPA allow a court to hold a consumer bound to a voided waiver under s. 9(3) of the CPA?

Holding: Appeals and cross-appeal allowed.

Reasoning:

(1) Yes. In this case there is a clear and direct conflict between the OLA and the CPA – and it is an unavoidable one. The OLA permits an occupier to obtain a waiver of liability. The CPA precludes a supplier from obtaining a waiver of liability. In other words, what the OLA permits, the CPAprohibits.

The principles of statutory interpretation urge an approach that allows both statutes to maintain their maximum application and effectiveness. The principles affecting the analysis with respect to which statute should take precedence include:

(i) where a class of things is modified by general wording that expands the class, the general wording is usually restricted to things of the same type as the listed items (ejusdem generis);

(ii) when one or more things of a class are expressly mentioned, others of the same class are excluded (expressio unius est exclusio alterius);

(iii) the exhaustiveness doctrine;

(iv) the provisions of a general statute must yield to those of a special one (generalia specialibus non derogant); and

(v) the absurdity doctrine.

Dealing with each principle in turn, the court ultimately concluded that ss. 7 and 9 of the CPA do not operate to void otherwise valid waivers executed under s. 3(3) of the OLA.

With respect to principle (i) above, the court held that the CPA does not purport to apply a special liability or higher standard of care for actions that are incidental to the role of an occupier. Rather, the CPA seeks to regulate the entirely separate category of consumer transactions between a supplier and consumer. Accordingly, reading the section pursuant to the principle of ejusdem generis, it is clear that the application of any special liabilities or higher standards imposed by the CPA were not meant to be preserved under s. 9(1) of the OLA.

With respect to principle (ii) above, the court held that there is no evidence in the record that in drafting the CPA and the OLA, the Legislature turned its mind to the interplay of these two statutes. There is no basis for expecting an express reference to the OLA in the CPA’sexemptions. Accordingly, there is little value to the expressio unius argument in these appeals and it provides no basis to infer that the Legislature intended for the CPA to supersede the OLA.

With respect to principle (iii) above, the court held that the OLA was intended to be an exhaustive scheme at least in relation to the liability of occupiers to entrants on their premises flowing from the maintenance or care of the premises. The very purpose of this legislative scheme would be undermined if the CPA were allowed to reintroduce another novel contractual duty that purports to subject occupiers to an obligation to warrant that their premises are of a “reasonably acceptable quality”. Accordingly, the fact that s. 9 of the CPA undermines the very purpose of the OLA is a factor that militates towards holding that the OLA supersedes the CPA.

With respect to principle (iv) above, the court held that the OLA carves out consumer transactions that relate to activities covered by the OLA from the application of the CPA. Put another way, to the extent that an occupier engages with members of the public for the use of the occupier’s premises in return for payment, and thus creates a consumer agreement, the provisions of the CPA do not apply to that agreement. At the same time, insofar as parties who are occupiers engage with members of the public and create consumer transactions that do not relate to “persons entering on premises or the property brought on the premises by those persons” (OLA, s. 2), then the CPA would still apply to those consumer transactions.

With respect to principle (v) above, the court held that the conclusion that the CPA does not operate within the sphere of activities governed by the OLA does not undercut the effectiveness of the CPA, nor does it offend public policy. Rather, it allows for the commercial flexibility necessary to promote the goal of encouraging landowners to permit their premises to be used for recreational activities.

(2) No. The purpose behind s. 93(2) of the CPA is to avoid situations where a consumer, who has received the benefit of a consumer agreement, attempts to retain those benefits without performing his or her side of the agreement because of a technical breach of the CPA. Section 93(2) is not intended to permit the court to hold a consumer to a consumer agreement, and therefore s. 93(2) cannot be used to give effect to a waiver that is voided by s. 9(3) of the CPA.

Cosolo v. Geo. A. Kelson Company Limited, 2018 ONCA 318

[Feldman, Pardu and Benotto JJ.A.]

Counsel:

Geoff Hall and Patrick Pengelly, for the appellant

Patrick Monaghan and Michelle Fan, for the respondent

Keywords: Contracts, Employment, Breach of Fiduciary Duty, Breach of Confidence, Summary Judgment

Facts:

The Respondent, Cosolo, is an engineer who was employed by the appellant engineering firm between 2005 and October 30, 2015, becoming a vice-president in July, 2011. During his employment, Cosolo acquired 43,000 Class E common shares of Kelson, which he sold to the company in August 2015 for $891,820. This amount was to be paid in ten installment payments of $89,182 each, plus interest on the outstanding balance.

He received the first installment before resigning in October 2015, but in 2016, after he had become the CEO of a rival engineering firm, Kelson refused to make further payments. It alleged that Cosolo had breached his fiduciary duties by soliciting Kelson employees to join him at the rival engineering firm and by using Kelson’s confidential information to compete against Kelson.

The motion judge granted summary judgment to Cosolo for $750,000. The motion judge found that Cosolo did not cause any harm to Kelson by any breach of fiduciary duty. He found that Cosolo did not use any confidential or proprietary information from Kelson, that the employees who left Kelson to work with Cosolo’s new employer did so on their own initiative, and that the two employees approached by Cosolo did not leave Kelson.

Issues:

Did the motion judge make palpable and overriding errors in finding that Cosolo did not breach his fiduciary duty by communicating with two current Kelson employees and that even if he did, the communications were meaningless breaches?

Holding: Appeal dismissed.

Reasoning:

No. The court held that the motion judge’s conclusion that the respondent did not breach a fiduciary duty was amply supported by the evidence. In other words, there was no genuine issue for trial raised on the record.

Tondat v. Hudson’s Bay Company, 2018 ONCA 302

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

Counsel:

Alan L. Rachlin, for the appellants

David S. Steinberg and Rebecca C. Glass, for the respondent

Keywords: Torts, Negligence, Occupier’s Liability, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, section 3(1)

Facts:

The respondent slipped and fell when entering a store operated by the appellant Hudson’s Bay Company, which had a contract with the second appellant, Quinterra Property Management Inc. for maintenance services.

At trial, the judge concluded that the floor of the store was wet and that is why the respondent fell. The trial judge also found that the appellants lacked an effective inspection or maintenance system. The only issue on appeal was liability.

Issues:

(1) Did the trial judge err in not requiring the respondent to prove that the wet floor “created an unreasonable risk of harm” before making conclusions about the measures adopted by the appellants to make the premises safe?

Holding:

Appeal dismissed.

Reasoning:

(1) No. Section 3(1) of the Occupiers’ Liability Act imposes an affirmative duty requiring occupiers to take reasonable care in the circumstances to make their premises safe. The factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation. The plaintiff in an occupiers’ liability case has the onus to prove that some act or failure to act on the part of the occupier caused her injury.

The trial judge’s reasons disclose that he properly conducted the inquiry required by s. 3(1) of the Occupiers’ Liability Act. The trial judge had the discretion to reject the expert’s testimony that the tiles used on the floor were safe and his reasons for rejecting the testimony were cogent. The expert, during his testing, had not replicated the conditions typical of the entrance to a busy department store on a rainy day as was the case when this slip and fall happened. The evidence of maintenance and other measures taken by the appellants to make the premises safe consisted of a time sheet showing that a single maintenance person had been on duty both as a cleaner and porter in the 118,348 square foot store on the day in question, without any indication of what, if anything, had taken place in the area where the accident occurred. The trial judge reasonably rejected the appellants’ defence that they had discharged their duties as occupiers.

Kuczera (Re), 2018 ONCA 322

[MacFarland, Huscroft and Nordheimer JJ.A.]

Counsel:

Robert Klotz, for the appellant, Miroslaw Kuczera

Patrick Bloomfield in person as Trustee to the Estate of Miroslaw Kuczera, Bankrupt

Facts:

The appellant was, until about 2007, successfully employed as an electrician until his assets became tied up in matrimonial litigation.

When his income became insufficient to meet the demands of paying support, as well as his legal fees, the appellant began to rely on credit and personal loans to cover his legal expenses. The appellant declared bankruptcy on May 20, 2009, and was discharged on October 14, 2010. However, the matrimonial litigation continued and on April 4, 2011, the appellant’s discharge was annulled.

In June 2011, the appellant made a consumer proposal (the “Proposal”) in an attempt to escape from bankruptcy. By this time, the appellant’s mental and emotional health began to deteriorate significantly as a result of the legal battles he was facing, both in the matrimonial and bankruptcy litigation. According to a later report from his psychiatrist, the appellant became clinically depressed and suffered from a “Dissociative Identity Disorder”.

The dispute over the proceeds of the matrimonial home was finally judicially resolved in late 2011. In early January 2012, the appellant received $72,850 from the proceeds of the matrimonial settlement, after all deductions and costs and his own legal fees. The appellant made his monthly Proposal payments to the Trustee until his money ran out in late 2012.

Consequently, his Proposal was annulled on December 1, 2012, and the appellant was again in bankruptcy. The appellant made payments totalling $4,265 under the Proposal. He did not know where all the money went. Amongst other reasons, the appellant says that he had periods of “disassociation” where he was unaware of where he was or what he was doing.

At the discharge hearing, the appellant, representing himself, sought to introduce a brief report from his treating psychiatrist as to his mental state. The Registrar received his evidence as to his psychiatric condition, but refused to grant an absolute discharge to the appellant. Rather, she ordered a conditional discharge. The first condition was that the appellant had to pay $61,000 (the amount remaining due under the Proposal), and the second was that he had to attend a second counselling. Further, the Registrar suspended the discharge for six months. This order was appealed to a judge of the Superior Court, who upheld the Registrar’s order.

The appellant had brought a motion, unsuccessfully, to put introduce fresh evidence in the form of two detailed psychiatric reports before the appeal judge, but they were not received. He again sought to introduce those reports as fresh evidence on this appeal.

Issues:

(1) Did the appeal judge err in refusing to consider the fresh evidence of the psychiatric reports?

(2) Should the conditional discharge be set aside?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The court stated that the fact that the psychiatrist was the appellant’s treating psychiatrist is not a proper basis for rejecting the evidence. It might go to the weight that the court would give to the evidence, but the asserted lack of independence is not of the type that would normally constitute a disqualifying factor under the Mohancriteria.

(2) Yes. The court explained that neither the Registrar nor the appeal judge gave proper consideration to the psychiatric evidence. The Registrar did, however, hear directly from the appellant with respect to these issues. The mental health issues, from which the appellant was suffering at the time that the settlement funds were received, were significant and they could have affected both his thinking and his actions. Further, the condition imposed by the Registrar that the appellant pay $61,000 as a condition of his discharge, given his personal history, was more than just “difficult” for the appellant. It was crushing, and the court stated it did not reflect the rehabilitative objective of the BIA,as affirmed in Re Moore, 2013 ONCA 769, 118 O.R. (3d) 161.

Accordingly, the court allowed the appeal, set aside the order of the appeal judge and the order of the Registrar, and granted the appellant an absolute discharge.

Bone Safety Signs, LLC v. Work Zone Safety Products Inc., 2018 ONCA 301

[MacFarland, Huscroft and Nordheimer JJ.A.]

Counsel:

Barry Yellin, for the appellant

Matthew Maurer, for the respondent

Facts:

The defendant appeals from the summary judgment granted by the motion judge that awarded the plaintiff the amount of Canadian dollars sufficient to purchase the sum of US$47,301.92, together with interest and costs.

The appellant was a distributor of the respondent’s product. In late 2015, the respondent notified the appellant that it would be increasing its prices effective May 1, 2016. In response, the appellant ordered a significant amount of product just before the price increase went into effect. The respondent brought this action for payment and moved for summary judgment. The appellant defended the motion on the basis that the respondent had allegedly agreed to take back other unrelated product that had been ordered and paid for years before.

The appellant also appeals against that portion of the costs award that granted costs to the respondent on a substantial indemnity basis from the date of its offer to settle. The appellant asserts that the offer to settle did not comply with Rule 49 of the Rules of Civil Procedure.

Issues:

(1) Did the motion judge err in awarding the plaintiff US$47,301.92?

(2) Did the motion judge err in awarding the respondent costs on a substantial indemnity basis?

Holding: Appeal dismissed.

Reasoning:

(1) No. The motion judge correctly concluded that there was no factual foundation advanced by the appellant to support its defence.

(2) No. The appellant contends that the offer to settle did not comply with Rule 49 because the offer provided for payment of US$42,000, as opposed to providing for the payment of the amount of Canadian dollars required to purchase the foreign currency obligation. Rule 49.02(1) allows a party to make an offer to settle on whatever terms it wishes. The requirement under s. 121 of the Courts of Justice Act, R.S.O. 1990, c. C.43 regarding foreign money obligations applies only to orders of the court for payment of those amounts. Further, even if the appellant’s contention was technically correct, r. 49.13 permits a court to consider any offer to settle made in writing in exercising its discretion with respect to costs. Consequently, there was no merit to the appellant’s complaint regarding the costs determination.

Hibbert v. McGoogan, 2018 ONCA 310

[Doherty, Rouleau and Miller JJ.A.]

Counsel:

Barry Yellin, for the appellant

Matthew Maurer, for the respondent

Keywords: Torts, Negligence, Solicitors, Summary Judgment, Standard of Proof, No Genuine Issue Requiring Trial

Facts:

The appellant appeals the dismissal of his claim for negligence against the respondent solicitor. The appellant had commenced several actions in Superior Court and Small Claims Court, and later retained the respondent to assume carriage of three of the actions. The appellant alleges that the respondent’s errors caused two of the actions to be dismissed, and prevented the execution of the judgment ultimately obtained in one of those actions. He also alleges that a third action was not prosecuted diligently, resulting in a judgment that could not be executed as the defendant had filed for bankruptcy.

On the summary judgment motion, the judge found that the appellant had failed to adduce sufficient evidence in support of the claims of negligence, and in any event failed to establish any resulting loss.

Issues:

(1) Did the motion judge err in dismissing the court reporter and proceeding with the motion for summary judgment with no court reporter present?

(2) Did the motion judge err in not referring the matter to trial?

(3) Did the motion judge err by applying the wrong standard of proof?

Holding: Appeal dismissed.

Reasoning:

(1) No. The summary judgment motion was argued based on a paper record without any oral evidence being adduced. A court reporter was not required.

(2) No. As found by the motion judge, the record was sufficient to decide the matter. The basis of his decision was that the appellant simply failed to advance adequate evidence supporting his allegations of negligence or loss caused by that alleged negligence. This contrasted with the respondent’s comprehensive materials showing that the dismissals and delays were not caused by the errors he is alleged to have committed. In fact, with respect to the third action, the motion judge found that the delay was caused by the appellant’s failure to provide timely instructions and the required retainer.

(3) No. It is well-established that on a motion for summary judgment, the responding party is required to put his best foot forward and show that there is a genuine issue requiring a trial. Even assuming that there was some basis for finding that the respondent was negligent in handling one or more of the appellant’s files, the appellant failed to meet that onus, and in particular failed to produce any evidence that a loss was incurred.

Brown v. Peel Mutual Insurance Company, 2018 ONCA 316

[Brown J.A. (Motion Judge)]

Counsel:

Sylviette Brown, acting in person

Cynthia Verconich and Jessica Forester, for the responding party

Facts: The moving party, Sylviette Brown, moves to set aside the order of the Registrar dated January 24, 2018 dismissing for delay her motion for leave to appeal from the order of Healey J., sitting as a single judge of the Divisional Court dated April 11, 2014. Healey J. dismissed Ms. Brown’s appeal from an order of the Small Claims Court granting judgment in favour of Peel Mutual on its Defendant’s Claim against her in the amount of $14,833.77. In her decision, Healey J. also refused to allow Ms. Brown to seek judicial review of or to renew her effort to appeal the dismissal of her Small Claims Court action against Peel Mutual Insurance Company.

Issues:

(1) Should the Registrar’s administrative dismissal of the appellant’s leave to appeal motion be set aside?

Holding: Motion dismissed.

Reasons:

(1) No. The principles governing a motion to set aside an administrative dismissal of a motion for leave to appeal are those set out in Sickinger v. Sickinger, 2017 ONCA 760 (In Chambers). The appellant has not provided an adequate explanation for not completing her motion for leave to appeal materials. Three judges of the court have seen the file at least five times. Several extensions of the time to complete the materials for her motion for leave to appeal were granted. Blair J.A. tried three times in Status Court to prompt Ms. Brown to complete her materials, to no avail.

Brown J.A. had no confidence that she would file her materials on time if granted an extension, given her delay of almost four years in moving the matter along. That delay constitutes real prejudice to Peel Mutual. The merits of Ms. Brown’s proposed leave to appeal motion appear very weak as they do not satisfy the criteria set out in Sault Dock Co. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.).

Canadian Union of Public Employees v. Ontario, 2018 ONCA 309

[MacFarland, Huscroft and Nordheimer JJ.A.]

Counsel:

L Century and S Shrybman, for the appellant

B Kettles, C P Thompson and S Mathai, for the respondents

Facts:

The appellants, electricity ratepayers required to pay debt retirement charges to the Ontario Electricity Financial Corporation, brought an action seeking damages and declaratory relief concerning the sale of shares in Hydro One, pursuant to a plan to privatize the electricity utility. The respondents are the Premier of Ontario, the Minister of Energy, and the Minister of Finance, all of whom exercised Ministerial power and statutory authority in connection with the sale.

The appellants’ claim was based on the tort of misfeasance in public office. They alleged that the Premier and Ministers acted in bad faith in connection with the privatization plan, and in particular acted to reward past donors and to obtain further donations to the Ontario Liberal Party.

The motion judge struck out the appellants’ claim under Rule 21 and dismissed the action. The motion judge concluded that the action was not justiciable because it concerned a matter of core policy, and therefore was immune from suit unless the decision was irrational or made in bad faith. The appellants did not argue that the decision was irrational. The motion judge found that the material facts pleaded were inadequate to support either a conclusion or an inference that the Ministers had acted in bad faith. Specifically, he concluded that the appellants’ claim “does not contain sufficiently detailed and fact-specific allegations linked to actual events, documents, and people, to pass muster as a valid pleading of bad faith conduct by the Ministers”.

The appellants argue that, properly understood, their claim pleads facts that support a conclusion of bad faith and that it should not have been struck out.

Issues:

(1) Did the motion judge err by assessing the material facts in isolation rather than reading the claim generously and as a whole?

(2) Did the motion judge err by misconstruing material facts as independent challenges to government policy, rather than as particulars of the legal elements of the claim?

(3) Did the motion judge err by failing to accept material facts as true and improperly reaching contrary factual findings?

Holding: Appeal dismissed.

Reasoning:

(1) The motion judge was required to strike the appellant’s claim only if it was “plain and obvious” that it did not disclose a reasonable cause of action. In making this determination, the motion judge was required to read the claim generously, making allowances for drafting inadequacies: Nash v. Ontario, 27 O.R. (3d) 1 (C.A.) at para. 11.

As the Ontario Court of Appeal noted in Trillium Power Wind Corp. v. Ontario (Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721, at para. 52, the exception permitting challenges to irrational and bad faith government policy decisions under the tort of “misfeasance in public office” is quite narrow: “A core policy decision made by the Executive based on political considerations or electoral expediency does not, on its own, constitute “bad faith” for purposes of a tort claim based on misfeasance in public office.” Decisions based on political expediency are to be expected. The check on them lies in democratic, not judicial, oversight. Thus, more is required to sustain a pleading than simply an allegation that government officials have acted in bad faith, or have acted for partisan political purposes. There is no question that it is difficult to plead the tort of misfeasance in public office, but that is so because matters of core policy are supposed to be immune from suit, absent rare cases of irrationality or bad faith.

(2) No. The motion judge carefully reviewed all of the facts pleaded and found that they did not plausibly support either the conclusion or the inference that the respondents acted in bad faith. He did not reject the pleadings on the basis that they were simply an objection to the policy being pursued. Rather, he found that they were precisely the sort of objections to which the immunity was intended to apply. The appellants pleaded that the respondents engaged in fundraising activities that included institutions and law firms involved in the Hydro One share sale. These were no more than pleadings that the government had engaged in political activities that benefited the Ontario Liberal Party, which could not possibly support the conclusion or inference that they had acted in bad faith.

(3) No. The motion judge’s reasons, read in context, indicated that there were innocent explanations for conduct the appellants contended was sinister. Read as a whole, the motion judge’s decision makes clear that the appellants’ allegations simply did not support a conclusion or inference that decisions concerning the sale were made in bad faith.

Given that the claim was not justiciable, the claim was properly struck out and the action was properly dismissed.

The Dominion of Canada General Insurance Company v. Unifund Assurance Company, 2018 ONCA 303

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:

D McGoey, for the appellant

E K Grossman, for the respondent

Facts:

This appeal arose in the context of a dispute between insurers with respect to the payment of statutory accident benefits (“SABS”), and the determination by the arbitrator of a preliminary issue.

Jing Hua Fan, the SABS claimant, owns an automobile repair shop. He was injured in an accident that occurred while he was test driving a customer’s vehicle. The Dominion of Canada General Insurance Company (“Dominion”) insured the repair shop under a garage policy of insurance. Mr. Fan was also a named insured under a motor vehicle liability policy issued by Unifund Assurance Company (“Unifund”), covering his personal vehicle. On January 4, 2012 Dominion received Mr. Fan’s application for SABS and began paying him benefits. On January 24, 2012, Dominion delivered a notice to Unifund, asserting that Unifund was in higher priority to pay Mr. Fan’s claim under s. 268(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”). Dominion served Unifund with a Notice of Commencement of Arbitration on November 5, 2012, initiating arbitration proceedings to determine the insurer responsible for paying the claimant’s SABS.

After two pre-hearing conference calls with the arbitrator, Dominion notified Mr. Fan of the dispute between the insurers by letter dated June 23, 2014, that enclosed the Dispute Between Insurers (DBI) Notice. The notice informed Mr. Fan of his right to object to the transfer of his claim and, if he objected, of his right to participate in any proceeding that might take place to determine which insurer was responsible to pay SABS. Mr. Fan did not respond to the notice. He attended an examination under oath in July 2014. He continued to receive benefits from Dominion. He did not resolve his SABS claim with Dominion, and the claim remained open during these proceedings. At the commencement of the arbitration hearing, Unifund made a preliminary objection to the jurisdiction of the arbitrator. The objection was based on Dominion’s failure to notify the claimant of the dispute between the insurers within 90 days of its receipt of the application for SABS. Unifund argued that such notice was a statutory precondition to Dominion’s claim that Unifund pay the claimant’s SABS.

The determination of the payor of SABS in priority disputes is resolved in accordance with the rules set out in s. 268(2) of the Act. Section 275(4) of the Act requires insurers to refer any unresolved priority dispute to arbitration under the Arbitration Act, 1991, S.O. 1991, c. 17. Disputes Between Insurers, O. Reg. 283/95, governs the procedures to be followed by insurers in a SABS priority dispute.

The arbitrator determined the issue in favour of the appellant. This decision was reversed on appeal to the Superior Court of Justice. The appeal judge applied a correctness standard of review and substituted his own interpretation of the applicable regulation for that of the arbitrator.

Issues:

(1) Did the appeal judge apply the correct standard of review?

(2) Was the arbitrator’s decision reasonable?

Holding:

Appeal allowed.

Reasoning:

(1) The decisions of SABS arbitrators respecting priority disputes are presumptively subject to review for reasonableness on appeal, even where the principal issue is a question of law: Intact Insurance Company v. Allstate Insurance Company of Canada, 2016 ONCA 609, 131 O.R. (3d) 625. The Court of Appeal went on to review the recent decision of Belairdirect Insurance v. Dominion of Canada General Insurance Co. (Travelers), 2018 ONCA 101 where the Court of Appeal applied the reasonableness standard of review of Intact to a question that could be characterized as one of statutory interpretation by a SABS arbitrator in a priority dispute: whether a person who was listed as an “excluded driver” was an “insured person” under s. 3 of the SABS regulation. The Court therefore concluded that there is a presumption of a standard of reasonableness, save for “exceptional” questions of law. The arbitrator was a specialized decision-maker engaged in interpreting her home statute and regulation in the context of the determination of a preliminary issue in a priority dispute under the SABS regime and therefore her decision should be reviewed on the standard of reasonableness.

(2) The arbitrator concluded that, while Dominion was required to give notice of the priority dispute with Unifund to the claimant, there was no prescribed time limit for notice. The notice that was given, albeit very late, satisfied the requirement. It permitted the participation by Mr. Fan in the proceedings to the extent contemplated by the regulation. The insured’s participation rights are limited to a right to object to the transfer of the claim, to be party to proceedings respecting any transfer, and to approve or object to any settlement of the dispute. The resolution of the dispute depends on s. 268(2) of the Act, and not on any objection or position taken by the claimant. The overriding objective of the regulation is to provide a procedure to determine priority disputes. That objective would not be furthered, and may well be undermined, by importing a requirement that has nothing to do with the determination of the dispute or the rights of the parties. The arbitrator reasonably characterized the claimant’s rights as procedural. It was reasonable for the arbitrator to conclude that a 90 day time limit was not essential to protect the claimant’s rights to object and participate, which could be protected in other ways. The Court of Appeal therefore found that the arbitrator’s interpretation of the requirements of the regulation was reasonable, as was her determination that the appellant’s notice to the claimant only after the arbitration proceedings were underway did not bar the appellant from pursuing its priority dispute with the respondent.

Handley Estate v. DTE Industries Limited, 2018 ONCA 324

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

Counsel:

Donald Dacquisto and Eric Zadro, for the appellant

Sean Dewart and Mathieu Bélanger, for the Lawyers’ Professional Indemnity Company, on behalf of the respondents

Facts:

The respondent was the plaintiff in the underlying action who subsequently entered into two agreements with the defendant, H&M Combustion Services Ltd. (“H&M”) in 2011 and 2016, to indemnify H&M from any exposure in the litigation in exchange for the assignment of its rights to the plaintiff in pursuing a third party claim that H&M commenced against the appellant.

Neither the respondent nor H&M disclosed the two agreements to the appellant immediately upon execution. Instead disclosure was made in a piecemeal fashion throughout 2016.

The appellants brought a motion to stay the action on the basis that the plaintiff and H&M failed to comply with the obligation of immediate disclosure set out in the decision of the Court of Appeal in Aecon Buildings v. Stephenson Engineering Limited. The motion judge held that while the two agreements should have been disclosed, there would be no stay of the action because the appellants were not prejudiced by the late disclosure.

Issues:

(1) Did the motion judge err in not granting a stay of the action based on the Court of Appeal’s decision in Aecon?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The obligation of immediate disclosure is not limited to pure Mary Carter or Pierringeragreements. The disclosure obligation extends to any agreement between or amongst parties to a lawsuit that has the effect of changing the adversarial position of the parties set out in their pleadings into a cooperative one. The two agreements made in this case between the respondent and H&M changed the litigation landscape and, accordingly, triggered the duty of immediate disclosure. The absence of prejudice does not excuse the late disclosure of such an agreement and any failure of compliance amounts to an abuse of process and must result in consequences of the most serious nature for the defaulting party. The only remedy to redress the wrong of the abuse of process is to stay the claim asserted by the defaulting, non-disclosing party. The motion judge erred in failing to apply Aecon’s remedy of staying the claim of the party that did not immediately disclose a litigation agreement. Such misdirection is not entitled to deference.

North Bay (City) v. Vaughan, 2018 ONCA 319

[Brown J.A]

Counsel:

A Burgess, for the moving party

S Lemke, for the responding party

Keywords: Provincial Offenses, Provincial Offences Act, R.S.O. 1990, c. P.33, s.131, Leave to Appeal

Facts:

The applicant, Joanne Vaughan, applies under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”), for leave to appeal the judgment of Justice Lalande of the Ontario Court of Justice made May 9, 2017 that dismissed her appeal from the conviction and sentence imposed by Justice of the Peace Scully on May 1, 2015. In November 2012, the applicant was charged with operating a rental unit without holding a current valid licence contrary to the City of North Bay’s residential rental housing bylaw. The applicant obtained the required licence in February 2013. She and her husband sold the property in April 2013.

She did not attend the trial. At the trial, through her counsel, the applicant entered a plea of not guilty. However, she did not contest the facts read in by counsel for the City. A conviction was entered. Counsel made a joint submission on sentence, which the Justice of Peace accepted. The Justice of the Peace suspended the sentence and ordered the applicant not to operate a rental unit without holding a valid licence for two years. The applicant appealed to the Ontario Court of Justice. She took the position that her counsel did not follow her instructions to vigorously contest the charge. Three witnesses testified before the appeal judge: the applicant and the two lawyers who acted for her immediately before and at the trial, Geoffrey LaPlante and Killian May. The appeal judge dismissed the appeal.

Issues:

(1) Should Leave to appeal be granted?

Holding:

Application for leave to appeal dismissed.

Reasoning:

(1) The applicant sought leave on the ground that at trial she entered what amounted to an uninformed guilty plea, which should be set aside. She argued that it is in the public interest for leave to be granted. The applicant contended that hearing her appeal would enable the court to provide needed guidance on the law governing pleas entered in a defendant’s absence.

In order for leave to be granted pursuant to section 131, the applicant must establish: (i) special grounds; (ii) on a question of law alone; and (iii) that, in the particular circumstances of this case, it is essential in the public interest or for the due administration of justice that leave be granted.

The issue before the appeal judge was straight-forward: Did the applicant instruct trial counsel to enter a plea of not guilty, not dispute the City’s facts, and then proceed with a joint submission on sentence? That called for a factual inquiry. The appeal judge made clear findings of fact. He did not accept the applicant’s evidence that she was confused by the offer the City made the day before trial or what would be involved in pleading not guilty, but not contesting the facts. The appeal judge held: “It is difficult in looking at all of this in these circumstances to conclude that [the applicant] was somehow caught off-guard when speaking with Mr. May and confused about what his instructions were to be.” The applicant’s claim, therefore, was found to be fact-based and leave was denied

Short Civil Decisions

Oliveira v. Aviva Canada Inc., 2018 ONCA 321

[MacFarland, Huscroft and Nordheimer JJ.A.]

Counsel:

Deborah Berlach, for the appellants

Stephen J. Moreau and Michael Mandarino, for the respondent

Keywords: Contracts, Insurance Policies, Interpretation, Coverage, Duty to Defend, Torts, Intrusion upon Seclusion

Criminal Decisions

R v Sadykov, 2018 ONCA 296

[Juriansz, Watt and Miller JJ.A]

Counsel:

Jennifer K. Penman and Karen Heath, for the appellant

Brett Cohen, for the respondent

Keywords: Criminal Law, Aggravated Assault, Assault with a Weapon and Possession of a Weapon, Inmates, Criminal Code, s. 719(1), R. v. Tam

R v Al-Masajidi, 2018 ONCA 305

[Sharpe, Pardu and Fairburn JJ.A. ]

Counsel:

Jamaldin Najma, for the appellant

Kathleen Farrell, for the respondent

Keywords: Criminal Law, Uttering a Death Threat to an Officer, Sentencing, Immigration Consequences, Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a), R. v. Pham

R v George, 2018 ONCA 314

[Brown J.A.]

Counsel:

Anita Nathan, for the appellant

Stephen Oakey, for the respondent

Keywords: Criminal, Bail, Special Circumstances, Criminal Code, s. 520, R v Durrani

R v Jeeva, 2018 ONCA 308

[Feldman, Watt and Paciocco JJ.A.]

Counsel:

Dean Embry, for the appellant

Brett Cohen, for the respondent

Keywords: Criminal Law, Insurance Fraud, Canadian Charter of Rights and Freedoms, s. 11(b), R. v. Jordan

R v LC, 2018 ONCA 311

[Sharpe, Pardu and Fairburn JJ.A.]

Counsel:

Melissa Adams, for the appellant

Geneviève McInnes, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Interference, Sentencing, Threat to Public Safety, Criminal Code, s. 161 Prohibition Order

R v Mallozzi, 2018 ONCA 312

[Sharpe, Pardu and Fairburn JJ.A]

Counsel:

David Littlefield, for the appellant

Gregory Lafontaine, for the respondent

Keywords: Criminal Law, Stay of Proceedings, Unreasonable Delay, R. v. Jordan, R. v. Morin, R. v. Cody, R. v. Gopie

R v Primmer, 2018 ONCA 306

[Sharpe, Pardu and Fairburn JJ.A. ]

Counsel:

Richard Litkowski and John Fennel, for the appellant

Megan Petrie, for the respondent

Keywords: Criminal Law, Assault Causing Bodily Harm, Self-Defence

R v Martins, 2018 ONCA 315

[Doherty, Rouleau and Miller JJ.A.]

Counsel:

Michael Little, for the appellant

Tanit Gilliam, for the respondent

Keywords: Criminal Law, Search Warrant

R v McBride, 2018 ONCA 323

[Watt, Brown and Roberts JJ.A]

Counsel:

Erin Dann, for the appellant

Mabel Lai, for the respondent

Keywords: Criminal Law, Harassment, Not Criminally Responsible on Account of a Mental Disorder

R v Canary, 2018 ONCA 304

[Feldman, Brown and Fairburn JJ.A.]

Counsel:

Paul Alexander, for the appellant

Ian Bell, for the respondent

Keywords: Criminal Law, Drug Possession, Canadian Charter of Rights and Freedoms, ss. 8 and 9, Freedom for Unreasonable Search and Seizure and Arbitrary Detention

Canada (Attorney General) v. Georgiou, 2018 ONCA 320

[Strathy C.J.O., Simmons and Hourigan JJ.A.]

Counsel:

Maurice J. Neirinck, for the appellant

Jeffrey G. Johnston, for the respondent

Keywords: Criminal Law, Fraud, Kelly Order, Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30, ss. 9.3(4), Criminal Code, s. 462.3(1)

Review Board Decisions

Sajid (Re), 2018 ONCA 292

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

Counsel:

Erin Dann and Cate Martell, for the appellant

Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Christopher Webb, for the Attorney General of Ontario

Keywords: Health Law, Ontario Review Board, Significant Threat to Public Safety

Marchese (Re), 2018 ONCA 307

[Watt, Brown and Huscroft JJ.A.]

Counsel:

Russell Browne, for the appellant Mary Marchese

Megan Petrie, for the respondent the Attorney General of Ontario

Keywords: Health Law, Ontario Review Board, Threat to Public Safety, Mental Health Act, R.S.O. 1990, c. M.7, Winko v British Columbia (Forensic Psychiatric Institute), R v Owen, Delta Air Lines Inc v Lukács, R v Ferguson, Carrick (Re)

Medcof (Re), 2018 ONCA 299

[Strathy C.J.O., Simmons and Hourigan JJ.A.]

Counsel:

Erin Dann, for the appellant

Nancy Dennison, for the Attorney General of Ontario

Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Keywords: Health Law, Ontario Review Board, Threat to Public Safety, Criminal Code, s. 672.78, Winko v British Columbia (Forensic Psychiatric Institute), Carrick (Re), Dunsmuir v. New Brunswick, Ferguson and Re Pellet

Hammoud (Re), 2018 ONCA 317

[Feldman, Watt and Paciocco JJ.A.]

Counsel:

Michael Davies, for the appellant

Jacquie Dagher, for Royal Ottawa Mental Health Centre

Molly Flanagan, for the Attorney General

Keywords: Health Law, Ontario Review Board, Significant Threat Threshold

Magee (Re), 2018 ONCA 300

[Doherty, Rouleau and Miller JJ.A.]

Counsel:

Dean Embry, for the appellant

Carmen Elmasry, for the Ministry of the Attorney General

Janice Blackburn, for the Person in Charge, Waypoint Centre for Mental HealthCare

Keywords: Health Law, Ontario Review Board, Threat to Public Safety

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.

Any article or other information or content expressed or made available in this Section, is that of the respective author and not of the OBA.

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