In Ruffolo v. David, the Court addressed the contempt power, stressing that contempt is an enforcement power of last resort and should be employed sparingly in order to preserve the judicial authority it is intended to protect. The Court additionally noted that appeals from contempt findings should typically only be made after the court of first instance has levied a sanction against the contemnor. In this case, though, the Court set aside the finding of contempt even before the court below had imposed a sanction.
In Service Mold + Aerospace Inc v. Khalaf, the Court examined the different principles to be applied between summary judgment and partial summary judgment. Partial summary judgments may increase the risk of duplicative proceedings or inconsistent findings and can frustrate the Hryniak objective of using summary judgment to achieve proportionate, timely and affordable justice. The Court held that a partial summary judgment should not proceed unless the issues can be bifurcated without causing overlap that could lead to duplication or inconsistent findings.
In Curley v. Taafe, the Court reviewed the test for malicious prosecution, confirming that in certain circumstances, the complainant may be treated as the prosecutor for the purposes of alleging the tort. The Court additionally clarified the application of the rule in Browne v Dunn, and reviewed the test for judicial notice of facts.
Other topics covered this week included whether a corporation should be liquidated with or without the court’s supervision, vexatious litigants, and forum selection clauses/forum non conveniens.
Finally, I wanted to take this opportunity to thank all of the participants and panelists who attended our Top Appeals of 2018 CLE that was held yesterday evening at the OBA. Lea and I enjoyed chairing the proceedings and hope that everyone in attendance found the program as interesting as we did. Our insider panelists shared interesting insights into some of the top appeals that were decided by the court last year.
Our first panel discussed the continuing expansion of the “appropriate means” test contained in ss. 5(1)(a)(iv) of the Limitations Act, 2002. The limitation period can be delayed if there is a different procedure available to remedy the damage besides a court proceeding, a professional has undertaken to rectify the damage, and now also if the damage is so trivial that it would be appropriate to take a “wait and see” approach to determine if the damage rises to a non-trivial level.
In addition, claims over for contribution and indemnity are now subject to the same discoverability principles of all other claims, so there is no hard two-year limitation period for claims over (Mega International Commercial Bank (Canada) v. Yung, one of the other decisions we discussed yesterday). As was pointed out during the panel discussion, the determination that discoverability applies to claims for contribution and indemnity is problematic, given the wording of section 5. Section 18 deems a defendant served with a claim as having knowledge that damage has been suffered on the date the defendant is served with a statement of claim (ss 5(1)(a)(i)). However, by virtue of ss 5(2), that deemed fact is only a presumption, which can be rebutted. Claims over for contribution or indemnity do not typically crystallize until a defendant suffers judgment or settles (unless a contractual indemnity says otherwise, as was the case in the prior leading authority on the limitation period applicable to claims for contribution and indemnity - Canaccord Capital Corporation v. Roscoe, 2013 ONCA 378). Therefore, for most claims over, the presumption that damage has been suffered is automatically rebutted. The consequence of the Court’s decision in Mega International may therefore be that defendants may have until two years after they suffer judgment or settle to bring a claim for contribution and indemnity. This result is obviously not in accordance with the intention of section 18 of the Limitations Act, 2002. It remains to be seen whether the Court will be asked to decide this issue directly in the future.
Two of the other appeals featured last night, Pointes Protection and Platnick v. Bent, were recently granted leave by the Supreme Court. We therefore await the SCC’s pronouncements on the anti-SLAPP provisions contained in sections 137.1 to 137.5 of the Courts of Justice Act.
Finally, one of the other decisions featured (which was a decision on a stay motion pending appeal), City of Toronto v Attorney-General (reduction of wards from 47 to 25), is going to a full hearing of the appeal before a five-member panel next month, even though the election went ahead with the reduced number of wards. In January, the new City Council of 25 confirmed the prior Council’s instructions to oppose the Attorney-General’s appeal, and to even seek leave to the Supreme Court in the event that MAG is successful on its appeal. There will therefore be more to come on this case in a future blog post.
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