COURT OF APPEAL SUMMARIES (April 30 - May 4, 2018)

10 mai 2018
John Polyzogopoulos

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Table of Contents

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2018 ONCA 407

Keywords:Torts, Negligence, Duty of Care, Established Categories, Proximity, Foreseeability, Damages, Pure Economic Loss, Anns/Cooper Test, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, PlasTex Canada Ltd. v. Dow Chemical of Canada Ltd., 2004 ABCA 309, 245 D.L.R. (4th) 650, leave to appeal refused [2004] S.C.C.A. No. 542; 376599 Alberta Inc. v. Tanshaw Products Inc., 2005 ABQB 300, 379 A.R. 1; Country Style Food Services Inc. v. 1304271 Ontario Ltd. (2005), 200 O.A.C. 172, Civil Procedure, Class Actions, Summary Judgment

Capcorp Planning (2003) Inc. v. Ontario (Finance), 2018 ONCA 406

Keywords: Taxation, Retail Sales Tax, Statutory Interpretation, Failure to Collect and Remit, Unfunded Employee Benefits Plans, Burden of Proof, Retail Sales Tax Act, R.S.O. 1990, c. R. 31

Davis v. East Side Mario’s Barrie, 2018 ONCA 410

Keywords: Torts, Negligence, Slip and Fall, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Butler v. Royal Victoria Hospital, 2018 ONCA 409

Keywords: Torts, Negligence, Medical Malpractice, Causation, Damages, Future Loss of Income, Costs

Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2018 ONCA 412

Keywords: Civil Procedure, Dismissal for Delay, Rule 48.14, Rules of Civil Procedure

992548 Ontario Inc. v. 8657181 Canada Inc., 2018 ONCA 416

Keywords: Real Property, Mortgages, Civil Procedure, Default Judgments, Setting Aside, Relief from Forfeiture, Winters v. Hunking, 2017 ONCA 909

Beaver v. Hill, 2018 ONCA 415

Keywords: Civil Procedure, Motions, Interim Costs, Cross-Examination on Affidavits, Orders, Breach, Re Ferguson and Imax Systems Corp. (1984), 47 O.R. (2d) 225 (Div. Ct.), Dickie v. Dickie,2007 SCC 8

College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420

Keywords: Administrative Law, Regulated Professions, Doctors, Professional Discipline, Standard of Review, Reasonableness, Penalty, R. v. Chase, [1987] 2 S.C.R. 293

Rahaman v. Fiscia, 2018 ONCA 418

Keywords: Contracts, Real Property, Debtor-Creditor, Civil Procedure, Applications, Rules of Civil Procedure, Rule 2.01

Yasin v. Ontario, 2018 ONCA 417

Keywords: Administrative Law, Vital Statistics Act, R.S.O. 1990, c. V.4, Jurisdiction, Remedies, Declarations, Civil Procedure, Necessary and Proper Parties

Jackson v. Stephen Durbin and Associates, 2018 ONCA 424

Keywords: Contracts, Solicitor and Client, Illegality, Contingency Fee Agreements, Family Law, Solicitors Act, R.S.O. 1990, c. S. 15, s. 28.1(3)(b)

Criminal Decisions

Short Civil Decision

Civil Decisions:

1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2018 ONCA 407

[Sharpe, Rouleau and Fairburn JJ.A.]

Counsel:

S. Stieber and E. Bowker, for the appellants

P.W. Kryworuk, R. Case and J. Damstra, for the respondent

Keywords:Torts, Negligence, Duty of Care, Established Categories, Proximity, Foreseeability, Damages, Pure Economic Loss, Anns/Cooper Test, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.); Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, PlasTex Canada Ltd. v. Dow Chemical of Canada Ltd., 2004 ABCA 309, 245 D.L.R. (4th) 650, leave to appeal refused [2004] S.C.C.A. No. 542; 376599 Alberta Inc. v. Tanshaw Products Inc., 2005 ABQB 300, 379 A.R. 1; Country Style Food Services Inc. v. 1304271 Ontario Ltd. (2005), 200 O.A.C. 172, Civil Procedure, Class Actions, Summary Judgment

Facts:

In August 2008, certain Maple Leaf brand ready-to-eat (“RTE”) meats became contaminated with listeria. Some people fell seriously ill and some died after eating the meat. Maple Leaf recalled meats that were produced at the production plant where the infected meat originated. The recall and plant closure affected the supply of two of the RTE meats used by the franchisees of Mr. Submarine Ltd. (“Mr. Sub”). The agreement requires the franchisees to purchase products exclusively from Mr. Sub or sources or suppliers approved by it. Although franchisees may purchase products not previously authorized by Mr. Sub, this may only be done with Mr. Sub’s approval. The franchisees did not buy the RTE meats directly from Maple Leaf. Instead, Maple Leaf dealt with distributors who, in turn, dealt with the franchisees. The franchisees would place their orders with, and be invoiced by, the distributors. Similarly, the distributors would place their orders with Maple Leaf and, in turn, be invoiced by Maple Leaf.

A class action was certified on behalf of Mr. Sub franchisees against Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. (collectively “Maple Leaf”). The representative plaintiff, 1688782 Ontario Inc., claims damages on the basis that Maple Leaf: (a) negligently manufactured and supplied potentially contaminated meat; and (b) negligently represented that the supplied meats were fit for human consumption. There is no evidence that any Mr. Sub customer was harmed by any contaminated product. However, the representative plaintiff alleges that the franchisees suffered economic losses arising in large part from the reputational harm they say they experienced from being publicly associated with Maple Leaf in the aftermath of the listeria outbreak. In particular, the representative plaintiff claims damages for loss of past and future sales, past and future profits, and loss of capital value and goodwill. It also claims damages for clean-up costs and other costs related to the disposal, destruction and replacement of RTE meats.

After certification of the class action, Maple Leaf brought a summary judgment motion seeking dismissal of certain claims on the basis that Maple Leaf owed no duty of care to the class. The representative plaintiff, in turn, asked that summary judgment be granted in its favour. The appeal by Maple Leaf arises from the motion judge’s decision concluding that Maple Leaf owed a duty of care to the franchisees “in relation to the production, processing, sale and distribution of the RTE Meats” and a duty of care “with respect to any representations made that the RTE Meats were fit for human consumption and posed no risk of harm.”

Issues:

(1) Did the motion judge err in finding that Maple Leaf supplied the representative plaintiff with a defective product dangerous to public health?

(2) Did the motion judge err in concluding that this case falls within a recognized duty of care?

(3) Did the motion judge err in failing to consider and properly apply the Anns/Cooper test?

(4) Did the motion judge err in finding that damages for pure economic loss are recoverable in this case?

Holding: Appeal allowed.

Reasoning:

(1) No. Reading the impugned comment in context, the motion judge was saying that there was a risk that the two core menu items could compromise human health, given that they had been produced at the same plant as the tainted products.

(2) Yes. Maple Leaf submitted that the motion judge improperly relied on three decisions to conclude that Maple Leaf’s relationship with the representative plaintiff fell within a recognized duty to supply a product fit for human consumption: PlasTex Canada Ltd. v. Dow Chemical of Canada Ltd., 245 D.L.R. (4th) 650, leave to appeal refused [2004] S.C.C.A. No. 542; 376599 Alberta Inc. v. Tanshaw Products Inc., 2005 ABQB 300; Country Style Food Services Inc. v. 1304271 Ontario Ltd. (2005), 200 O.A.C. 172. Plas-Tex and Tanshaw are said to support the conclusion that a manufacturer has a recognized duty of care to those in its supply chain not to manufacture and provide a product that has become dangerous as a result of negligence.

The motion judge’s summary judgment reasons are not entirely clear on this point, but any ambiguity as to whether the motion judge determined that the relationship between the parties fell within an established category is resolved by the motion judge’s costs ruling. The motion judge concluded that the certification and summary judgment motions did not raise a novel issue of law, noting that “the relationship between the parties fell within a recognized duty of care.”

The motion judge, who did not have the benefit of Livent when she decided this case, improperly relied on Plas-Tex, Tanshaw and Country Style to conclude that Maple Leaf’s relationship with the representative plaintiff fell within a recognized duty of care to supply a product fit for human consumption. The majority in Livent warned that courts should be cautious in finding proximity based upon a previously established or analogous category.

Plas-Tex, Tanshaw and Country Style are readily distinguishable from this case, where it is alleged that Maple Leaf should be held liable for damages for the reputational harm to the franchisees as a result of a recall and their public association with Maple Leaf. As a result, it is necessary to conduct a full Anns/Cooper analysis to assess whether the motion judge’s conclusion that the relationship between Maple Leaf and the franchisees was such that a duty of care to supply fit meat extends to the damages at issue on this appeal is sustainable.

(3) Yes. In concluding that Maple Leaf owed a duty to supply a product fit for human consumption to the representative plaintiff, the motion judge found that the circumstances of the relationship between the representative plaintiff and Maple Leaf were such that Maple Leaf was under an obligation to be mindful of the plaintiff’s legitimate interests in conducting its affairs. The motion judge erred in failing to consider the scope of the proximate relationship or scope of any such duty arising from it.

To the extent there may be a duty to supply meat fit for human consumption, it does not extend to the franchisees’ damages for pure economic loss at issue here. Maple Leaf’s duty of care in tort to supply meat fit for human consumption, a duty which is aimed at protecting human health, was owed to the franchisees’ customers, not the franchisees. The claim advanced against Maple Leaf in this action rests upon an alleged additional and quite different duty owed to franchisees to protect their reputation and pay for any consequent damages for pure economic losses.

The alleged damages are, in large part, a consequence of the public announcement of the recall and resulting publicity. To conclude that Maple Leaf owed a duty of care in tort to the franchisees to protect them against the kinds of damages at issue on this appeal would be to enlarge the duty to safeguard the health and safety of customers by supplying fit meat to include a quite different and added duty to franchisees to protect against reputational harm. To do so would constitute an unwarranted expansion of a duty owed to one class of plaintiffs and extend it to the fundamentally different claim advanced by the franchisees.

The motion judge found that it was “reasonable, appropriate, and foreseeable for consumers to avoid buying food from a restaurant where there had been a food recall arising from problems in the plant of its meat supplier that were not ‘resolved’ for a relatively significant period of time”. However, this finding of reasonable foreseeability is not enough to give rise to a duty of care in tort to the franchisees which can only arise where the foreseeable harm falls within the scope of a proximate relationship. In light of these conclusions, it is unnecessary to address the issue of whether there are any residual policy considerations that would negate the imposition of a duty of care.

In the context of negligent misrepresentation cases, proximity is most usefully considered before foreseeability because “[w]hat the defendant reasonably foresees as flowing from his or her negligence depends upon the characteristics of his or her relationship with the plaintiff, and specifically … the purpose of the defendant’s undertaking”. While Livent affirms that when undertaking a full proximity analysis the court must examine all relevant factors arising out of the relationship between the plaintiff and the defendant, two factors are determinative in the case of negligent misrepresentation – the defendant’s undertaking and the plaintiff’s reliance.

Here, the motion judge found that Maple Leaf ought reasonably to have foreseen that the representative plaintiff would rely on its representation – namely, that the RTE meats were fit for human consumption and posed no risk of harm – and its reliance was reasonable in the circumstances. She noted that the representative plaintiff was within a known and readily identifiable category of persons and that Maple Leaf was the representative plaintiff’s exclusive supplier. Maple Leaf was aware that the RTE meats would be offered for sale to consumers who could be injured if it was unfit. There was an error in failing to consider the scope of the proximate relationship between the parties, which in turn affected the foreseeability analysis.

Maple Leaf undoubtedly undertook – in the context of its contractual relationship with the franchisor – to supply meat safe for human consumption by Mr. Sub customers. The nature or purpose of such an undertaking was to ensure that Mr. Sub customers who ate RTE meats would not become ill or die as result of eating the meats. The purpose of the undertaking was not, however, to protect the reputational interests of the franchisees. The reputational damage said to be sustained by the plaintiff, arising from Maple Leaf’s supply to others and from the recall – aimed at safeguarding health and safety – falls outside the scope of Maple Leaf’s undertaking to the franchisees. Accordingly, the alleged injury was not reasonably foreseeable.

In light of the conclusions on stage one of the Anns/Cooper analysis, it is unnecessary to address residual policy considerations other than to note that the concern about encouraging effective recalls is equally applicable in this context. In conclusion, Maple Leaf’s duty of care with respect to any representations made that the RTE meats were fit for human consumption and posed no risk of harm does not extend to the damages for pure economic loss claimed here.

(4) Not decided. Maple Leaf argues that the motion judge erred in determining that the damages claimed as arising out of economic losses were recoverable. In particular, it says that there can be no claim in negligence for a defective but non-dangerous good, where no personal injury or damage to property was incurred. Given the conclusion that the motion judge erred in her duty of care analysis, it was unnecessary to consider this argument on appeal.

Capcorp Planning (2003) Inc. v. Ontario (Finance), 2018 ONCA 406

[Watt, Pepall and Miller JJ.A.]

Counsel:
L. Patyk and J. DeFreitas, for the appellant
G. Sanders and C. Morris, for the respondent

Keywords: Taxation, Retail Sales Tax, Statutory Interpretation, Failure to Collect and Remit, Unfunded Employee Benefits Plans, Burden of Proof, Retail Sales Tax Act, R.S.O. 1990, c. R. 31

Facts:
The Respondent, Capcorp Planning (2003) Inc. (“Capcorp”), sold an employee health and welfare plan (“HWP”). Some employers found the HWP attractive, especially owner/manager operations where the owner or manager of the corporation was the only employee seeking coverage.

Under Capcorp’s HWP, a participating employer agreed to pay specified expenses incurred by participating employees. When an employee incurred an expense said to be covered by the HWP, the employer submitted a claim and a cheque to Capcorp for the expense claimed and an administrative fee for Capcorp. After a review of the claim, Capcorp determined whether the expense claimed was covered by the HWP. If the claim was covered, Capcorp reimbursed the employee for the expense.

Capcorp did not charge retail sales tax (“RST”) on any amounts employers paid and it received in respect of claims made under the HWP. The Appellant, the Minister of Revenue (“the Minister”), considered that RST was exigible for these amounts, assessed Capcorp accordingly and required Capcorp to pay a penalty of $278,625.31, including interest for failure to collect and remit the RST the Minister considered applicable. The assessment was based on the auditor’s determination that the HWP was a “benefits plan” subject to taxation under the Retail Sales Tax Act, R.S.O. 1990, c. R. 31 (“RSTA”), as amended. Capcorp, by extension, was required to charge, collect and remit RST. Failure to do so rendered the company liable to the penalty assessed.

Capcorp objected, but the Minister affirmed the assessment and penalty.

The appeal judge concluded that the HWP was not a policy of insurance, group insurance, or a funded benefits plan. In his view, the HWP was most akin to an “unfunded benefits plan” for the purposes of the RSTA. He accepted the evidence adduced by Capcorp that most of the employers who enrolled in the HWP could not obtain health insurance that would supplement their OHIP coverage. In the absence of evidence from the Minister to contradict the testimony about the HWP constituency, the appeal judge concluded that since those who enrolled in the HWP would not be able to obtain insurance coverage, they were not required to pay RST on the amount they paid to Capcorp.

Issues:

(1) Did the appeal judge err in his interpretation of the definition of an “unfunded benefits plan” under the RSTA?

(2) In the alternative, did the appeal judge err in in his consideration of the evidence, by prematurely shifting the burden of proof to the Minister, in failing to consider relevant evidence and in misapprehending the nature and sufficiency of Capcorp’s evidence?

Holding: Appeal allowed.

Reasoning:
(1) Yes. Section 2.1(1) of the RSTA, in relevant part, requires that “[e]very person who is resident in Ontario, or who carries on business and Ontario and who:

(a) enters into a contract of insurance with an insurer;

(b) is a person whose risk is covered by group insurance;

(c) is a planholder or member of a benefits plan;

shall pay … a tax at the rate of 8 percent of the premium payable” (emphasis added).

A “benefits plan” is defined under s. 1(1) of the RSTA as a funded benefits plan, an unfunded benefits plan or a qualifying trust. The term “unfunded benefits plan” is exhaustively defined in s. 1(1) to mean:

a plan which gives protection against risk to an individual that could otherwise be obtained by taking out a contract of insurance, whether the benefits are partly insured or not, and where payments are made by the planholder directly to or on behalf of the member of the plan or to the vendor upon the occurrence of the risk. [Emphasis added.]

The court considered whether the term “unfunded benefits plan” included a plan that provides protections generally available under contracts of insurance, but unavailable to specific participants because of their pre-existing medical conditions, or some other reason.

The court stated that it has been long established that there is but one principle or approach to statutory interpretation which is that the words of the statute are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the enacting legislative body.

In light of these principles, the court held that the HWP is an “unfunded benefits plan” as the term is defined in s. 1(1) of the RSTA, and thus subject to RST, although the plain language within s. 1(1) did not resolve the issue at hand. To reach this conclusion, the court looked to the legislative purpose and found that benefits plans became subject to RST following an amendment to the RSTA: Bill 138, An Act to amend the Retail Sales Tax Act, 3rd Sess., 35th Leg., Ontario, 1994.

Therefore, benefits plans – funded or unfunded – are taxed because the legislature has determined that such plans are substitutes for insurance, and should therefore receive similar tax treatment to contracts of insurance. Crucially, a plan does not cease to be a substitute for a contract of insurance simply because it provides protections above and beyond those that specific plan members could have obtained in the marketplace. The court stated that to hold otherwise would arbitrarily exclude some benefits plans from the scope of s. 1(1), unduly restricting the provision’s reach.

(2) Yes. On the appeal in the Superior Court of Justice, the appeal judge held that Andrew Noseworthy, the Chief Executive Officer of Capcorp, established a prima facie case that planholders – individual owner/managers – could not obtain insurance coverage for the same risks covered by the HWP. Since the Minister had failed to adduce any contrary evidence, the appeal judge quashed the Minister’s assessment.

The court stated that under s. 18(1) of the RSTA, where a vendor has failed to make a return or a remittance as required under the Act, the Minister may make an assessment of the tax collected by the vendor for which the vendor has not accounted and the assessed amount is deemed to be the tax collected by the vendor. Subject to being varied or vacated on an objection or appeal and subject to a reassessment, the Minister’s assessment is deemed to be valid and binding on the taxpayer or vendor: RSTA, s. 18(8). It follows from these statutory provisions that the taxpayer bears the burden of establishing that the factual findings (or assumptions) on which the Minister grounded the assessment are wrong.

The court held that the appeal judge’s error in finding that Capcorp’s evidence constituted a prima facie case that rebutted the assumptions underlying the Minister’s assessment followed from the judge’s error in interpreting the term “unfunded benefits plan” under s. 1(1) of the Act.

The court held that Capcorp’s evidence was general in nature and fell short of establishing a prima facie case that “protection against risk to an individual” including any undertaking to pay, among other things, “for supplemental healthcare, drugs, dental care, vision care, hearing care or for protection against loss of income due to illness or accident…”, could not “otherwise be obtained through contracts of insurance”, on the proper construction of the phrase.

Davis v. East Side Mario’s Barrie, 2018 ONCA 410

[MacFarland, LaForme and Epstein JJ.A]

Counsel:

J. Keenan Sprague, for the appellants
R. Love and E. Vila, for the respondent

Keywords: Torts, Negligence, Slip and Fall, Occupiers’ Liability Act, R.S.O. 1990, c. O.2, Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A., Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Facts:
The appellant KD, while carrying her newborn baby PD, fell while going down a set of stairs to use a washroom located on the lower level of the respondent’s Barrie premises. KD pleaded “negligence, breach of duty, breach of contract and breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2” (the “OLA”) regarding the staircase where the fall occurred. The respondent brought a motion for summary judgment. During the motion the appellant advanced a novel argument alleging that the defendant breached its statutory warranty that its service supplied to the plaintiff would be of reasonably acceptable quality pursuant to the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (“CPA”). The motion judge granted summary judgment on the basis of the record before him and dismissed the appellant’s action “as pleaded” but did so “without prejudice to the plaintiffs to bring a motion to amend their statement of claim to plead the ‘novel questions of law’ described above.”

The parties agreed to an order amending the statement of claim “without prejudice to any of the Defendant’s rights, including but not necessarily limited to the Defendant’s right to bring a further motion for procedural/substantive relief on the grounds that the amendments do not disclose a cause of action, are barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and otherwise do not disclose a genuine issue requiring trial”.

A second motion for summary judgment followed and proceeded before de Sa J. (the “Second Motion Judge”) and is the subject of this appeal. The Second Motion Judge concluded “In my view, it is essentially an alternative theory of liability for the same complaint…I agree with the Plaintiffs that the Amended Claim does not advance a “new cause of action” for the purposes of the Limitations Act and under normal circumstances an amendment would be permissible under Rule 26.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194].” He went on, however, despite the agreement of the parties to argue only the limitation point before him, to conclude that there was no genuine issue for trial.

In light of the agreement of counsel as to the issue to be argued before the Second Motion Judge, this appeal falls to be determined on whether or not the Second Motion Judge erred in concluding that the amendments to the statement of claim did not constitute a new cause of action. The appellants concede that if they do, their claim is statute-barred.

Issues:

(1) Is the CPA claim a new cause of action?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. However, because it is a new cause of action, it is barred by the Limitation Act, 2002. The original statement of claim pleaded general negligence, breach of duty, breach of contract and breach of the OLA. The focus clearly was on the appellant’s fall down the stairs as the cause of her injuries. The amended claim, on the other hand, is focused on the failure to advise and contains new pleas in support of what the appellants describe as their alternative theory of liability. The original statement of claim focused on the staircase that they alleged was dangerous, inadequately maintained, poorly lit and caused the plaintiff to fall. In the amended claim the plea is very different. The appellant pleads a new duty of care: a duty to advise the appellant of the existence and availability of washroom facilities on the main floor of the restaurant. They argue that provisions of both the OLA and the CPA support these arguments. While the OLA was pleaded in the original statement of claim, it was pleaded in relation to the condition of the staircase. The new claim is a fundamentally different claim based on facts not originally pleaded. It is not mere particulars of the prior claim. The CPA and its relationship with the OLA is a new plea in support of a new cause of action and the Second Motion Judge erred in finding to the contrary. Because the new plea raises a new cause of action, it is statute-barred as it is raised for the first time, long after the two-year period of limitation has expired.

Butler v. Royal Victoria Hospital, 2018 ONCA 409

[LaForme, Epstein and Pardu JJ.A.]

Counsel:

V. Wise and R. Mediratta, for the appellants

G. MacKenzie and B. MacKenzie, for the respondents

Keywords: Torts, Negligence, Medical Malpractice, Causation, Damages, Future Loss of Income, Costs

Facts:

In September 2008, SB was diagnosed with hypotonic cerebral palsy. SB’s condition was caused by hospital nurses’ negligent artificial rupture of her membranes at the birth of her and her twin brother on January 26, 2007. Only at the beginning of the trial did the appellants admit they fell below the standard of care. That admission left the issues of causation and damages to be determined. In particular, the appellants submitted SB’s cognitive and behavioural issues were not entirely caused by the birth injury and that the claims under various heads of damages were excessive.

After a five-and-a-half-week trial, in comprehensive reasons for judgment, the trial judge held that the birth injury was the sole cause of the numerous conditions that were negatively affecting SB. He awarded the respondents $5,568,393 in damages, which included $1,881,846 for future loss of income. The trial judge, in separate reasons for decision, fixed the respondents’ costs in the amount of $2,201,259 inclusive of fees, HST, and disbursements. The fee portion of the costs award totaled $1,503,466.

The appellants submit the trial judge erred in two respects when deciding the issue of SB’s future income loss, namely: (i) his finding that SB would have completed college; and (ii) his approach to contingencies. They also appeal the costs award.

Issues:

Did the trial judge err with respect to the award for future loss of income?
Did the trial judge err with respect to the issue of costs?

Holding: Appeal dismissed.

Reasoning:

(1) No. First, the trial judge’s finding that there was a real and substantial possibility that SB would have graduated from college, but not university, and would have been employed full-time if it were not for the birth injuries she sustained is entirely reasonable. In making this finding, the trial judge properly weighed the evidence and neither ignored relevant evidence nor failed to consider a relevant factor in a legal test. There was ample evidence before him to support his conclusion that SB probably would have completed college but for the appellants’ negligence. The appellants have failed to demonstrate any reason why the court should disturb his conclusion.

Second, although trial judges are entitled to adjust an award for future loss of income to account for general contingencies—whether upwards or downwards—it is not an error of law for the trial judge to decline to do so: see Graham v. Rourke, 75 O.R. (2d) 622 at p. 636; Gerula v Flores, [1995] O.J. No. 2300, at para. 41. It is certainly arguable that an inference is available that both positive and general contingencies could be drawn from all the evidence: see Beldycki Estate v. Jaipargas, 2012 ONCA 537; Gerula, at para. 41.

While the trial judge based his assessment on the starting point of female average full time earnings to age 65, it was open to him to conclude that temporary absences from the workforce would be offset by benefit programs such as employment or disability insurance. He was therefore not obliged to make a downward adjustment for non-participation in the workforce. Calculation of the future loss of income of any child, let alone one born profoundly disabled, is not an exact science.

Leave to appeal a costs order will not be granted except in obvious cases where the party seeking leave convinces the court there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 OAC 315, at para. 22. The trial judge noted that this case involved more than eight years of litigation leading up to trial, which included days of examinations for discovery, multiple pre-trials, and countless exchanges of correspondence. The trial judge was not required to adopt a weighted average of partial indemnity and substantial indemnity costs. A costs award does not have to be measured with exactitude. Rather, it should reflect a fair and reasonable amount that should be paid by the unsuccessful parties: Zesta Engineering Ltd v. Cloutier (2002), 21 C.C.E.L. (3d) 161..

Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2018 ONCA 412

[MacFarland, LaForme and Epstein JJ.A.]

Counsel:

P. A. Ivanoff and E. Thomas, for the appellant, Iroquois Falls Power Corp.

B. Maynard, for the respondents, Chubb Insurance Company of Canada and American Home Assurance Company

R. Rueter, for the respondents, Jacobs Canada Inc. and McDermott Incorporated

Keywords: Civil Procedure, Dismissal for Delay, Rule 48.14, Rules of Civil Procedure

Facts:

Iroquois Falls Power Corp. (“IFPC”) appeals from the orders of the Superior Court of Justice dismissing its action for delay and awarding costs to the respondents. The action was commenced in 2005. IFPC alleged that the engineering work related to two natural gas turbines at a power generating station was negligently performed. This action was dismissed in March 2007 when the respondents obtained summary judgment. The Court of Appeal allowed IFPC’s appeal, in part.

IFPC then brought a motion to amend its statement of claim, which was dismissed in September 2008. The Court of Appeal overturned that decision in 2009. No further steps have been taken since then to bring the action to trial.

As of January 1, 2017, Rule 48.14(1) now requires the registrar to dismiss all actions in Ontario that were five or more years old and had not been set down for trial. There is no authority for the registrar to order costs. The respondents brought a motion on January 4, 2017, under Rule 24.01(1) to dismiss IFPC’s action for delay and for their costs of the action. IFPC did not dispute that the action should be dismissed for delay but instead brought its own motion to require the court give effect to Rule 48.14(1) and dismiss the action, but without costs. In particular, IFPC took the position that its action should have been dismissed by the registrar on January 1, 2017, pursuant to Rule 48.14(1) with no costs. IFPC, therefore, asked the motion judge for an order, nunc pro tunc, that this action be administratively dismissed effective January 1, 2017.

The motion judge granted the respondents’ motion under Rule 24.01(1) and under the court’s inherent jurisdiction and ordered that the action of IFPC be dismissed for delay. Further, he found that the registrar had acted appropriately in not dismissing the action under Rule 48.14(1). He held that the Rule does not apply to case managed actions, such as this one. The motion judge declined IFPC’s request to grant an order under the Rule, nunc pro tunc dismissing the action effective January 1, 2017.

Issue: In dismissing the action for delay under Rule 24, did the motion judge fail to recognize that the “new regime” that has been ushered in by the legislature under Rule 48.14 takes precedence over Rule 24?

Holding: Appeal dismissed.

Reasoning:

Rule 48.14 does not take precedence over Rule 24.01, nor does it oust the jurisdiction of the court from dealing with any action that is subject to dismissal by the registrar under Rule 48.14.

There is no hierarchy as between Rule 24.01 and Rule 48.14. Each of the Rules simply provide a different means that may lead to the dismissal of the plaintiff’s action for delay. There is nothing in the language of Rule 48.14 to even suggest an intention that the jurisdiction of the registrar to issue an administrative order under Rule 48.14 takes precedence over the jurisdiction of the court.

Non-compliance with a rule is an irregularity and a court “may grant all necessary amendments or other relief, on such terms as are just” and where “necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part”: Rule 2.01(1). Thus, rather than Rule 48.14 ousting the jurisdiction of the court in favour of the registrar, the court’s paramount jurisdiction is manifestly recognized.

992548 Ontario Inc. v. 8657181 Canada Inc., 2018 ONCA 416

[MacFarland, LaForme and Epstein JJ.A.]

Counsel:

P. Starkman, for the appellant

J. McNulty, for the respondent

J. Masterman, for LH Golf Group Inc.

Keywords: Real Property, Mortgages, Civil Procedure, Default Judgments, Setting Aside, Relief from Forfeiture, Winters v. Hunking, 2017 ONCA 909

Facts:

The appellant, 8657181 Canada Inc., mortgaged property it owned to the respondent, 992548 Ontario Inc. The appellant defaulted on the mortgage and the respondent obtained a default judgment for foreclosure. This is an appeal from the dismissal of the appellant’s motion to set aside the judgment and for relief from forfeiture with respect to the default under the mortgage.

Issues:

(1) Did the motion judge err in dismissing the appellant’s motion to set aside the judgment?

Holding: Appeal dismissed.

Reasoning:

(1) No. The appellant’s argument is based on the court’s recent decision in Winters v. Hunking, 2017 ONCA 909, decided after the motion judge’s reasons were released. The appellant argues that the motion judge erred by not considering the importance of the windfall the respondent would realize in the context of the appellant’s circumstances if the default foreclosure judgment were to stand.

This case is very different from Winters v. Hunking. The appellant did not provide any evidence relating to its investment, appraised value, or the portion of the purchase price allocated to the land in the original purchase. There is no evidentiary foundation for the respondent’s claim that the property is undervalued. No consideration of windfall is possible without evidence.

It is important to emphasize that setting aside a default judgment for foreclosure is exceptional relief, and the outcome in Winters v. Hunking turns on its facts. The motion judge’s decision was discretionary and entitled to deference. The issue is whether a decision whether to set aside a default judgment for foreclosure is whether the equities in favour of the mortgagor outweigh those in favour of the mortgagee or – to the same effect, adopting the language pertaining to setting aside default judgments, generally – whether the decision to set aside the order leads to a just result in all the circumstances.

Beaver v. Hill, 2018 ONCA 415

[Brown J.A. (Motions Judge)]

Counsel:

A. Lokan, for the responding party

M. McCarthy, for the moving party

Keywords: Civil Procedure, Motions, Interim Costs, Cross-Examination on Affidavits, Orders, Breach, Re Ferguson and Imax Systems Corp. (1984), 47 O.R. (2d) 225 (Div. Ct.), Dickie v. Dickie,2007 SCC 8

Facts: The applicant Mother filed an affidavit in support of her motion for advance (interim) funding in respect of the appeal of the respondent, the father, from the order of Chappel J. dismissing his challenge to the jurisdiction of Ontario courts to adjudicate Mother’s claims against him for custody, child support, and spousal support. The Father wants to cross-examine the Mother on her affidavit, which she opposes.

The Father identifies the areas on which he wants his counsel to cross-examine: (i) her retainer agreement with her counsel; (ii) payments she has made to counsel; (iii) efforts she has made to obtain legal funding from other sources; (iv) the amount she is prepared to contribute to fund her response to the appeal; and (v) the basis for her request for $100,000 in interim costs.

Issue:

(1) Should the Father be permitted to cross-examine the Mother on her affidavit submitted in support of her motion seeking interim costs?

Reasoning:

(1) No. Two competing principles are at play in respect of the Father’s request for an order compelling the Mother to attend for cross-examination on her affidavit. On the one hand, there is a prima facie right of a party to cross-examine an affiant. However, the court retains an inherent power to control its own process. Consequently, in cases where it appears to be in the interests of justice, a court may refuse to permit such cross-examination or restrict its scope: Re Ferguson and Imax Systems Corp. (1984), 47 O.R. (2d) 225 (Div. Ct.). On the other hand, a court may decline to entertain a request by a party to invoke its assistance where the party is not in compliance with an order of the court: Dickie v. Dickie, 2007 SCC 8.

In the present case, the Father has not complied with the an order for disclosure (Disclosure Order). He has not made any documentary production, nor has he served an affidavit explaining why he cannot or when he will. While the Father is seeking to vary the Disclosure Order, but that does not change the fact that he has not complied with it. Full and prompt financial disclosure is a key element of Ontario’s family law regime. The failure to comply with court-ordered disclosure is a most serious matter. Given these circumstances, the motion judge was not prepared to accede to the Father’s request for an order compelling the Mother to attend for cross-examination on her affidavit.

College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420

[Rouleau, Benotto and Roberts JJ.A.]

Counsel:

W. Niels, F. Ortved, D.M. Porter, and J. Katz, for the appellant

E. Widner and R. Ainsworth, for the respondent

Keywords: Administrative Law, Regulated Professions, Doctors, Professional Discipline, Standard of Review, Reasonableness, Penalty, R. v. Chase, [1987] 2 S.C.R. 293

Facts:

This decision is an appeal from the order of the Divisional Court, reversing a decision of the Ontario College of Physicians and Surgeons Discipline Committee.

The appellant, Dr. P, was found guilty of professional misconduct by the Discipline Committee of the College of Physicians and Surgeons (“the Discipline Committee”). He appeals from the order of the Divisional Court, which overturned the penalty imposed on him by the Discipline Committee, and remitted the penalty decision to the Discipline Committee for reconsideration.

The Divisional Court allowed the College’s appeal. While acknowledging that the Discipline Committee’s decision on penalty was subject to deference, the Divisional Court determined that the penalty imposed was unreasonable on the bases submitted by the College.

Dr. P was granted leave to appeal the Divisional Court’s decision. He submits that it should be set aside and the Discipline Committee’s penalty be reinstated.

Decision Below – Liability

In the liability phase of the hearing, the Discipline Committee heard from the various complainants and Dr. P. The allegations included claims that while examining patients with a stethoscope, he cupped patients’ breasts, touched patients’ nipples, placed his stethoscope directly on patients’ nipples and in one instance “tweaked” or squeezed a patient’s nipple.

The Discipline Committee accepted the evidence of the four complainants as to the inappropriateness of the touching, finding that their description of what had occurred was inconsistent with a misunderstanding. The Discipline Committee concluded that the allegations had been made out, that the touching was deliberate and that there was no consent from the patients or clinical reason for Dr. P to have touched them in that manner.

Relying on the Supreme Court of Canada’s decision in R. v. Chase, [1987] 2 S.C.R. 293, the Discipline Committee concluded that, even in the absence of a finding as to Dr. P’s motivation, a finding of sexual abuse could be made where the touching in question was objectively a violation of a patient’s sexual integrity.

The Discipline Committee therefore found Dr. P guilty of sexual abuse in relation to the four patients. In each case, the abusive conduct consisted of medically unnecessary touching of the breast or nipples of the patients during medically required chest examinations conducted using a stethoscope.

The Discipline Committee also found that Dr. P had asked a fifth patient out on a date immediately following his medical examination of her during which her breasts were exposed. While not found to be sexual abuse, that conduct, as well as the four sexual abuse incidents, constituted disgraceful, dishonourable and unprofessional conduct.

The Discipline Committee was also informed that Dr. P had pleaded guilty to simple assault of two of the complainants in relation to these same incidents. These convictions, for which Dr. P received a conditional discharge, were considered relevant to his suitability to practice. The Discipline Committee also considered these convictions to be professional misconduct.

Decision Below – Penalty

The Discipline Committee accepted the expert evidence of Dr. Rootenberg that Dr. P did not meet the diagnostic criteria for psychopathology or sexual deviance, which, he testified, is relevant with respect to relapse and prevention. The Discipline Committee also accepted the expert evidence that the risk of Dr. P re-offending by committing further sexual transgressions in the future was low.

Dr. Martin’s expert evidence was relevant to the issues of remediation and risk management that the Discipline Committee was required to consider in determining the appropriate penalty. She highlighted deficits in Dr. P’s interactive skills with patients that give rise to the same risk factors of misunderstanding by patients outlined by the experts who testified at the liability hearing. However, the Discipline Committee also accepted Dr. Martin’s opinion that Dr. P had made good progress in remedying the deficits identified while working with him from August 2013 to June 2015.

The Discipline Committee then explained that the fact that four patients had been subjected to sexual abuse in fairly close succession was an aggravating factor. Based on the expert evidence, it declined however to infer that this was indicative of “predatory intent or uncontrollable deviant urges on Dr. P’s part”. It is at this point that the Discipline Committee posited another possible inference that could explain why there were four patients abused in close succession:

Another possible inference is that this pattern reflects a physician who was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was, in fact, abusive.

It is this quote that the Divisional Court cites as demonstrating that the Discipline Committee made an unreasonable finding that contradicted the findings it made at the liability stage.

The Discipline Committee ultimately suspended Dr. P’s licence for six months. He was ordered to submit to a reprimand, and required to pay $64,240 for the victims’ therapy costs and $35,680 in costs of the proceedings. He was also ordered to continue undergoing individualized instruction with Dr. Martin focused on consent, boundaries, and doctor-patient communications, and to complete a clinical education program focused on physical examinations.

A number of restrictions were also imposed on Dr. P’s return to practice, such as being prohibited from engaging in any encounter with female patients except under the supervision of a practice monitor approved by the College.

Issues:

(1) Did the Divisional Court err in concluding that the Discipline Committee made inconsistent findings of fact warranting intervention?

(2) Did the Divisional Court err in determining that the penalty imposed by the Discipline Committee was manifestly unfit?

Holding: Appeal allowed.

Reasoning:

Majority – Rouleau J.A. and Roberts J.A.

(1) Yes. The court stated that the Divisional Court correctly selected and articulated the reasonableness standard of review. However, the Divisional Court failed to properly apply the reasonableness standard. Instead, it incorrectly substituted its own assessments of the evidence and penalty for those of the Discipline Committee.

The Divisional Court found the Discipline Committee’s penalty decision to be unreasonable because it was based on inconsistent findings of fact. Specifically, it rejected the Discipline Committee’s suggestion that Dr. P’s unawareness as to how his behavior was abusive could possibly explain the abuse of four patients.

This “possible inference” of unawareness drawn by the Discipline Committee was, in the Divisional Court’s view, inconsistent with the finding of fact that there were several offences. More importantly, the inference was considered inconsistent with the Discipline Committee’s finding at the liability stage that Dr. P had touched the complainants in a way that an objective observer would find to be sexual and which the complainants described as “blatantly sexual”.

The court found that there are several problems with the Divisional Court’s concern. First, the Discipline Committee’s finding is well supported by the testimony of the experts. This includes the College’s expert at the liability hearing, who testified that touching a female patient’s nipple with either the hand or the stethoscope during a lung examination should be avoided because it is medically unnecessary and could be misinterpreted. In addition, the finding is supported by the Discipline Committee’s assessment of Dr. P’s testimony. Finally, the Discipline Committee did not, as the Divisional Court suggests, find that Dr. P’s awkward, unskilled and non-empathic manner was the only cause; it simply opined that it was a factor.

The Divisional Court advanced a second basis for rejecting the Discipline Committee’s suggestion that the several counts of sexual abuse could possibly be explained by Dr. P’s genuine and complete unawareness of the ways in which his behaviour was abusive. In the Divisional Court’s view, such an inference is inconsistent with Dr. P having been found guilty of criminal assault on two of the complainants.

The court held that this basis is also flawed. The Discipline Committee’s possible inference is not inconsistent with a finding of guilt for simple assault. Simple assault contemplates an unwanted touching. The Discipline Committee found that Dr. P deliberately touched the complainants in areas that were medically unjustified and that the complainants had not consented to the touching. This is sufficient to support the simple assault convictions. A sexual motivation need not be proven to support a conviction for simple assault.

Thus, the court held that while the Divisional Court chose the correct standard of review, it erred in its understanding of the evidence and of the reasons of the Discipline Committee, and it effectively sought to retry the case in a manner inconsistent with the proper application of the standard of review.

(2) Yes. The court stated that there were several reasons why the Divisional Court’s analysis was flawed regarding the issue of whether the Discipline Committee imposed an unfit penalty.

First, it misunderstood the Discipline Committee’s reasons and misapplied the reasonableness standard of review. As the Divisional Court properly stated, “a penalty decision of such a tribunal is at the heart of its discretion and is due great deference”. Nevertheless, the Divisional Court in effect simply substituted its view of what might constitute an appropriate penalty and did not defer to the Discipline Committee’s decision as was required. Furthermore, the penalty imposed was not manifestly unfit but represented the Discipline Committee’s careful consideration of all relevant factors and was within the range of reasonable outcomes.

To be overturned by a reviewing court, the Discipline Committee must have made an error in principle or the penalty must be “clearly unfit”. To be clearly unfit, the penalty must fall outside of the range of reasonableness. The Discipline Committee considered a number of its previous decisions involving the sexual abuse of patients. The factual scenarios in those cases were, like the present case, disturbing. However, they showed that the penalty imposed on Dr. P was in line with those that have been imposed in Ontario.

The penalty imposed by the Discipline Committee was carefully tailored to the circumstances of this case, and fit comfortably within the range of penalties imposed in other similar or more serious cases of sexual abuse of patients. It was based on forensic psychiatric evidence accepted by the Discipline Committee as well as the evidence it heard during the liability phase. It also took into account the progress shown by Dr. P in addressing some of the concerns. Further, following the lodging of the complaints, Dr. P had practiced with supervision for about five years without any incident.

Thus, the court allowed the appeal and restored the penalty imposed by the Discipline Committee.

Benotto J.A., dissenting, agreed with the majority that the correct standard of review was applied, but did not agree that the Divisional Court erred in its application. She would have dismissed the appeal.

Rahaman v. Fiscia, 2018 ONCA 418

[LaForme, Watt and Nordheimer JJ.A.]

Counsel:

H. Sarros, for the appellants

J. R. Smith, for the respondents

Keywords: Contracts, Real Property, Debtor-Creditor, Civil Procedure, Applications, Rules of Civil Procedure, Rule 2.01

Facts:

The appellants appeal from the judgment of the application judge who ordered them to pay to the respondents the sum of $120,000.

The parties are two individuals and their respective corporations. They had entered into an agreement by which the appellants were to sell a property to the respondents. Concurrent with these events, the appellants had borrowed the sum of $120,000 from the respondents. Those monies were to be repaid through the closing of the sale of the property.

The sale of the property did not go according to plan. The first agreement of purchase and sale for the property was not completed. A second agreement of purchase and sale was entered into. At the same time, the appellant, F, signed an acknowledgment of the $120,000 loan on behalf of himself and his company. Some weeks later, F alone signed a promissory note respecting the $120,000 loan. This promissory note stipulated that $40,000 was to be applied as a deposit on the sale of the property and the remaining $80,000 was to be paid on the closing of the sale.

This sale of the property was also not completed, at least in part because the $40,000 was never paid by the appellants. The respondents brought an application seeking the return of the $120,000. The application judge granted that relief. In doing so, he rejected the position of the appellants that the entire sum of $120,000 was a deposit on the sale of the property and, since that transaction did not close, the appellants did not have to repay that amount since the deposit was forfeited.

Issues:

(1) Did the application judge err in granting relief to the respondents?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court saw no error in the conclusion reached by the application judge. The evidence clearly established that the $120,000 was a loan that was to be repaid by the appellants, either through the sale of the property or directly, if the sale was not completed. Neither the loan acknowledgment nor the promissory note referred to the $120,000 as being a deposit.

The court also agreed with the application judge that it would have been better for this matter to have proceeded as an action upon which a summary judgment motion could have been brought. It was not the type of issue that ought have been dealt with by way of application. However, like the application judge, in the particular circumstances of this case, especially the lack of any real factual dispute, the court found that any technical error in the procedure followed was insufficient to undermine the result: Rule 2.01 of the Rules of Civil Procedure.

Yasin v. Ontario, 2018 ONCA 417

[Strathy C.J.O., Roberts and Paciocco JJ.A.]

Counsel:

J. Currie, for the appellant

A. Armstrong, for the respondent

Keywords: Administrative Law, Vital Statistics Act, R.S.O. 1990, c. V.4, Jurisdiction, Remedies, Declarations, Civil Procedure, Necessary and Proper Parties

Facts:

The appellant brought an application in the Superior Court of Justice, naming Her Majesty the Queen in Right of the Province of Ontario as the respondent. He sought a declaration that his date of birth is January 1, 1951, rather than November 5, 1955. His application was dismissed.

In a brief endorsement, the application judge stated, without elaborating, that: (a) Her Majesty the Queen in Right of Ontario (“Ontario”) was not a proper party to the application; (b) the Superior Court of Justice has no jurisdiction to make the order sought; and (c) the appellant failed to prove his true date of birth, given his inconsistent statements.

It is not entirely clear what “inconsistent statements” the judge was referring to. Counsel for Ontario maintained that the application judge was correct: it is not a proper party to the proceeding because the only relevant Ontario statute is the Vital Statistics Act, R.S.O. 1990, c. V.4, which deals with the registration of births in Ontario or on board ships registered in Ontario. The Vital Statistics Act expressly does not apply to births outside Ontario. Ontario took no position on the substantive issues or merits of the appeal.

Issues:

(1) Did the application judge err by dismissing the application on the basis that Ontario was not a proper party?

(2) Should the Court of Appeal exercise its inherent jurisdiction to grant declaratory relief in this case?

Holding: Appeal dismissed.

Reasoning:

(1) No. In the absence of any request for relief that would affect Ontario, or any demonstrated interest of Ontario in the proceeding, the application judge properly dismissed the application.

(2) No. One would have thought that there was some administrative route available, short of a proceeding in the Court of Appeal, to either correct the birth date shown on the appellant’s Canadian identity documents or to satisfy Canada Revenue Agency of the appellant’s correct date of birth to enable him to obtain CPP benefits. Counsel did not point the court to any such mechanism. In the absence of more specific evidence as to how this matter has developed, it cannot be determined whether the appellant’s proper route is through administrative channels, judicial review or an application in the Superior Court for directions or other relief, including declaratory relief.

On a proper record, and with the proper parties before it, the court may have jurisdiction to make a declaration of the appellant’s birth date to enable him to obtain CPP benefits. Her Majesty the Queen in Right of Canada, represented by the Attorney General of Canada, would be a proper party to such proceedings. A proper record would include: (a) a statement by the appellant, under oath, setting out the reasons for seeking the order; (b) the disclosure of any public or other records that would be affected by the order; and (c) any other matter that could be affected by the order. This would enable the court to consider the implications of the order and to identify any other parties, which could include the Province of Ontario, who should receive notice of the application.

Jackson v. Stephen Durbin and Associates, 2018 ONCA 424

[Benotto, Brown and Miller JJ.A.]

Counsel:

S. Dewart and S. Bentley-Jacobs, for the appellant

M. G. Cochrane, for the respondent

Keywords: Contracts, Solicitor and Client, Illegality, Contingency Fee Agreements, Family Law, Solicitors Act, R.S.O. 1990, c. S. 15, s. 28.1(3)(b)

Facts:

The sole issue on appeal was whether a “Results Achieved Fee” charged by the appellant law firm in a family law matter is a prohibited contingency fee agreement under the Solicitors Act, R.S.O. 1990, c. S. 15 (the “Act”)

The respondent retained the appellant to represent him in family law litigation. The primary issue was the custody of the respondent’s 6-year old daughter. The respondent signed a retainer agreement outlining hourly rates, daily fees for court appearances and an automatic yearly increase of 15% with respect to those fees. The retainer agreement also provided for “an increase in fees in the event of a positive result achieved (“Results Achieved Fee”). The respondent was awarded sole custody, half the proceeds of the sale of the matrimonial home and costs of $192,000. The appellant received $423,510.47 in trust representing the respondent’s share of the proceeds of sale from the matrimonial home plus the costs award. The appellant deducted $132,597.74 from the trust to satisfy the outstanding account. The appellant also unilaterally deducted a Results Achieved Fee of $72,433.24. It is unclear on the record how the appellant arrived at this amount. The trial judge concluded that the agreement at issue was a contingency fee agreement since, under the plain terms of the agreement, the solicitor would receive no fees for his services unless an amount was recovered.

Issues:

(1) Is the “Results Achieved Fee” for a family law matter a contingency fee agreement that is prohibited by the Act?

Holding: Appeal dismissed.

Reasoning:

(1) Yes. The Act was amended in 2004 to include the phrase “contingent, in whole or in part” on a successful outcome. Consequently, a premium or bonus added on to a lawyer’s fee is captured by the meaning of contingency fee agreement and is thus prohibited by s. 28.1(3)(b) of the Act. The Court of Appeal concluded that a contingency fee agreement is an agreement under which any part of a lawyer’s compensation is tied to the successful resolution of the matter for which the lawyer was retained. Section 28.1(3)(b) of the Act prohibits contingency fee agreements in respect of family law matters. Therefore, the Results Achieved Fee was prohibited by the Act.

Criminal Decisions:

R v. Forcillo, 2018 ONCA 402

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

Counsel:

M. Lacy, J. Wilkinson and B. Badali, for the appellant

H. Leibovich, S. Reid and M. Perlin, for the respondent

Keywords: Criminal Law, Attempted Murder, Defences, Lawful Use of Force, Criminal Code, s. 25, Self-defence, Criminal Code, s. 34, Fresh Evidence, Palmer v. The Queen, [1980] 1 S.C.R. 759, Sentencing, Mandatory Minimum Sentences, Canadian Charter of Rights and Freedoms

R v. Roberts, 2018 ONCA 411

[Laskin, Miller and Paciocco JJ.A.]

Counsel:

G. Lafontaine, for the appellant

M. Fawcett, for the respondent

Keywords: Criminal Law, Impaired Driving Causing Bodily Harm, Evidence, Credibility, Canadian Charter of Rights and Freedoms, sections 8 and 10(a)

R v. Ahmed, 2018 ONCA 426

[LaForme, Watt and Nordheimer JJ.A.]

Counsel:

J. Foy, for the appellant

A. Derwa, for the respondent

Keywords: Criminal Law, Fraud, Breach of Trust, Sentencing, Denunciation and Deterrence, Principle of Restraint, Parity Principle, R. v. Lacasse, 2015 SCC 64

Short Civil Decisions:

Sub-Prime Mortgage Corporation v. Cedeno, 2018 ONCA 408

[Strathy C.J.O., Watt and Epstein JJ.A.]

Counsel:

D. Paul, for the appellant

G. E. Cohen, for the respondent

Keywords: Real Property, Mortgages, Default Judgments, Fresh Evidence

Albanese v. Franklin, 2018 ONCA 431

[MacPherson, Hourigan and Benotto JJ.A.]

Counsel:

M. A. Hoy, for the appellant

M. Cruickshank, for the respondents