Canada: Top 5 Civil Appeals from the Court of Appeal (May 2016)

The parties to the Indian Residential Schools Settlement Agreement ("IRSSA") - a comprehensive settlement of class actions and other litigation by former residential school students - agreed to establish the Independent Assessment Process ("IAP"), a mechanism to compensate survivors who suffered sexual abuse, physical abuse, or serious psychological harm when they were students at Indian residential schools. This appeal and cross-appeal concerned the disposition of the highly confidential documents created within the IAP, including the survivors' application forms for additional compensation above the minimum given to all class members, the written and audio records of their evidence about the abuse they suffered and its impact on their lives and the compensation decisions written about their claims by the adjudicators. At the core of these appeals was the question of who controls the survivors' stories of their residential school experiences and what happens to them.

The Supervising Judge held that other individuals and institutions affected, including the alleged perpetrators and the churches, did not hold a veto over the survivors' right to share their own IAP documents. He also held that it is the court, not the government, that controls the IAP documents, and that federal legislation does not require their archiving at the government's discretion. Rather, the IAP documents could be archived with the claimants' consent, and the court was required to give effect to their wishes about their own stories. The Supervising Judge ordered a notice program, whereby the Truth and Reconciliation Commission ("TCR") or the National Centre for Truth and Reconciliation ("NCTR") would notify survivors of their option to transfer their documents to the NCTR for archiving. He also ordered a 15 year retention period during which survivors could decide whether they wanted to transfer their documents to the NCTR, at the end of which all IAP documents in the possession of others, including the government, would be destroyed.

The Sisters of St. Joseph of Sault Ste. Marie and a number of Catholic entities appealed the Supervising Judge's order that the IAP documents could be archived at the NCTR at the request of an IAP claimant alone. They claimed that the IRSSA expressly provided that archiving may only take place with their consent. The Attorney General of Canada, supported by the TRC and the NCTR, cross-appealed, claiming that it controls the IAP documents and that they are subject to federal privacy, access to information and archiving legislation.

Writing for the Court of Appeal, Chief Justice Strathy agreed with the Supervising Judge that IAP documents may be archived with the consent of the claimant alone. An IAP claimant's archiving of documents with the NCTR merely preserves the documents for what they are: the stories of those who say they suffered mistreatment and abuse in residential schools. Survivors of residential schools are entitled to tell those stories.

By allowing claimants to archive their IAP transcripts, the IRSSA merely provides them with an alternative and expeditious means of preserving their stories as part of the process. There was nothing to stop an IAP claimant from entering the process and telling his or her story so that it would be preserved for all to see. The claimant would not have required anyone's permission or consent to take that step, and there is no reason why a claimant should require permission or consent to achieve the same result in depositing his or her IAP documents with the NCTR.

Strathy C.J.O. further held that the notice program ordered by the Supervising Judge was not a material amendment to the IRSSA. It did not alter the terms of the IRSSA, create new rights or ignore other rights, but served only to ensure that the rights accorded by the IRSSA were understood and respected.

Turning to the cross-appeals, Strathy C.J.O. held that the IAP documents are not "government records", or records under the control of a government institution. The IAP documents were obtained through a court-controlled process within the settlement of civil litigation, and could only be used for the purposes of that process. When the government is in possession of records only as a result of litigation and is constrained in its use of those records by the court process or by a specific court order, those records are not "under the control of a government institution" and are not subject to federal privacy, access to information and archiving legislation.

Chief Justice Strathy further held that both the Supervising Judge's order that the IAP documents be retained for a period of 15 years and his order that they be destroyed at the conclusion of that period were reasonable. Ordering the eventual destruction of the IAP documents was within the Supervising Judge's jurisdiction as a class action judge and was a reasonable response to a gap in the IRSSA, based on his thorough and thoughtful interpretation of that agreement and the surrounding factual matrix. The 15 year retention period was based on the ultimate limitation period in the Limitations Act, 2002, S.O. 2002, c. 24, and recognized that the IAP documents may unexpectedly become relevant years after the claim process appears to have been completed.

Strathy C.J.O. held that it was not reasonable, however, for the Supervising Judge to order the TRC and NCTR to conduct the notice program. The notice program did not fall within the mandate of either entity and it would be a breach of confidence to provide them with the information necessary to implement it.

Although the Supervising Judge did not address the disposition of the documents produced in the alternative dispute resolution process which preceded the IRSSA, Strathy C.J.O. held that the order ought to apply to those documents as well. Since the intent of the IRSSA was to roll all existing litigation into the IAP, the records of the predecessor process were subject to the court's supervisory jurisdiction, and consistency and fairness required that they be treated in the same manner as the IAP documents.

The appeal and cross-appeal were both dismissed, with the order varied to include the earlier documents and to require the Chief Adjudicator to conduct the notice program. Justice Sharpe dissented, holding that he would have allowed the cross-appeals on the ground that the IAP documents are "government records". 

2. Good v. Toronto (Police Services Board), 2016 ONCA 250 (Hoy A.C.J.O., Pardu and Roberts JJ.A.), April 6, 2016

Good is an important case about the standard of appellate review to class action certification decisions.

The June 2010 G20 summit in Toronto was marked by numerous demonstrations across the city. The respondent, Sherry Good, was one of approximately 1,000 people arrested and detained at the Detention Centre specially constructed for the event.

Good commenced a proposed class action against the Toronto Police Services Board ("TPS") and three other defendants, asserting multiple claims, including breach of her Charter rights, and that of other detainees who would be included in the class. The motion judge dismissed her motion for certification of the proposed class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA"). On appeal to the Divisional Court, Good narrowed her claims and dropped her claim against all defendants except the TPS. The Divisional Court set aside the order of the motion judge, certifying Good's narrowed claim as two separate class proceedings. It also awarded Good costs for the original certification motion in the amount of $125,728.03. Although the Court acknowledged that the issues raised were complex, it significantly reduced the amount of costs claimed in order "to reflect the time that was spent on the unsuccessful aspects of the claim as originally advanced".

TPS appealed the order of the Divisional Court certifying the two proceedings, and the respondent sought leave to cross-appeal the costs awarded by the Divisional Court. The Court of Appeal upheld the Divisional Court's certification of the two class actions and increased the costs award made in Good's favour.

TPS argued that, in certifying the class action, the Divisional Court improperly conducted a de novo review of the issue of whether the requirements of section 5(1) of the CPA had been met, rather than applying an appellate standard of review to the motion judge's determination that they had not. Writing for the Court of Appeal, Hoy A.C.J.O. rejected this submission, finding that the Divisional Court's intervention was valid because the proposed class action on appeal was significantly narrower than the proposed class action considered by the motion judge. Where the Divisional Court reversed determinations made by the motion judge, it was justified in doing so because of the narrowed scope of the proposed class proceeding.

The Associate Chief Justice also dismissed the appellant's assertion that the Divisional Court erred in concluding that the plaintiff had met the section 5(1)(b) identifiable class criterion, holding that the Divisional Court correctly found "the commonality of an alleged command order being made ordering the detention of the class members without regard for the individual characteristics or conduct of each class member." She agreed with the lower court that the combination of classes in a single proceeding is not prohibited and that it is of no consequence whether any member of the class did commit a criminal offence or a breach of the peace.

TPS further submitted that the Divisional Court erred in identifying the following as common issues:

1.  Did each mass detention and/or arrest (or the prolonged duration thereof) constitute false imprisonment of the respective subclass members at common law and/or arbitrary detention or imprisonment contrary to section 9 of the Charter, including a determination of whether the mass detentions and/or arrests are justified under section 1?

2.  If TPS breached the class members' common law or Charter rights, can the court make an aggregate assessment of damages as part of the common issues trial?

3.  Was TPS guilty of conduct that justifies an award of punitive damages?

Hoy A.C.J.O. rejected TPS' assertion that these were not common issues. She agreed with the lower court's analysis that the motion judge's conclusion that the issue was not a common issue was rooted in her focus on the possibility of varying individual conduct by those who were arrested or detained, which was an error in principle in the context of the class as cast on appeal. The Associate Chief Justice also agreed with the Divisional Court that it should be open to the common issues judge to consider whether an aggregate assessment of damages would be an appropriate remedy. With regard to punitive damages, Hoy A.C.J.O. noted that the common issues dealing with alleged breaches of the class members' rights contemplate that liability will be determined at the common issues trial. If liability is found, and at least part of the compensatory damages are assessed on an aggregate basis, it would be open to the trial judge to consider whether she had a sufficient measure of the compensatory damages to determine entitlement to and the quantum of punitive damages, or whether this could be determined only after any individual assessment phase. Accordingly, whether TPS was guilty of conduct justifying an award of punitive damages was a proper common issue.

Turning to the matter of the resolution of those issues, Associate Chief Justice Hoy dismissed the appellant's submission that the Divisional Court erred by considering the preferable procedure requirement in section       5(1)(d) of the CPA de novo and not affording deference to the motion judge's determination that a class proceeding was not the preferable procedure. Hoy A.C.J.O. held that, in the circumstances, the Divisional Court was entitled to consider the requirement de novo. "Lack of commonality" was fundamental to the motion judge's determination that a class proceeding would not be the preferable procedure for the resolution of the common issues. The Divisional Court correctly concluded both that Good had satisfied the identifiable class criterion in section 5(1)(b) and that the core allegation in the action was indeed a common issue. These conclusions radically altered the landscape in which the preferability analysis was conducted. Hoy A.C.J.O. agreed with the Divisional Court that a class proceeding was the preferable procedure for the resolution of the common issues and with its reasons for so concluding.

Finally, Hoy A.C.J.O. considered and rejected TPS' submission that the Divisional Court's certification of the respondent's claim as two separate proceedings in the absence of discrete statements of claim was procedurally unfair because it was deprived of the ability to make submissions on the certification test with reference to a pleading. She noted that the possibility of converting the single proposed class action into more than one class action was suggested as an alternative in the plaintiff's factum before the Divisional Court. TPS knew of and had the opportunity to respond to this suggested alternative. Its ability to make submissions on the certification test was therefore unaffected by the absence of separate pleadings.

Turning to the respondent's submissions, the Associate Chief Justice granted her leave to cross-appeal the Divisional Court's cost award and allowed her cross-appeal, awarding her costs of the certification motion in the amount of $315,000. While she agreed that a reduction in the costs sought by the respondent was warranted to reflect the change in the scope of Good's claim, Hoy A.C.J.O. held that the lower court erred in principle in relying on inapplicable benchmarks in determining the quantum of the award. While the motion judge tempered the costs she awarded to TPS on the certification motion to reflect access to justice concerns, such a reduction was not appropriate when awarding costs of a certification motion to a successful plaintiff. Moreover, the Divisional Court erred in reducing the costs it awarded to Good to reflect the evolution of her claim without considering the effect on the goal of access to justice. As the Court held in Ruffolo v. Sun Life Assurance Co. of Canada, 2009 ONCA 274, in arriving at costs dispositions, the court must always keep in mind the legislative goals of access to justice, behaviour modification and judicial economy. Left untouched, the Divisional Court's costs award would have a "chilling effect" on public interest class actions and would substantially hinder access to justice. 

3. Howard v. Benson Group Inc. (The Benson Group Inc.), 2016 ONCA 256 (Cronk, Pepall and Miller JJ.A.), April 8, 2016

Is an employee who is employed under a fixed-term contract that does not provide for early termination without cause entitled to payment of the unexpired portion of the contract upon early termination? In this decision, the Court of Appeal considered this question.

The appellant, John Howard, was employed by the respondent, Benson Group Inc., as Truck Shop Manager and then as Sales Development Manager at an automotive service centre in Bowmanville, Ontario. Howard signed a written employment contract with a five-year term, which Benson terminated without cause less than two years later.

Howard brought an action for breach of contract against his former employer, seeking payment of his compensation for the unexpired portion of the contract, more than three years' salary. His motion for summary judgment was granted, but he was not awarded payment of his salary to the end of the term of the contract; instead, the motion judge awarded him common law damages for wrongful dismissal, subject to mitigation, to be assessed at a mini-trial.

The Court of Appeal held that the motion judge erred, concluding that Howard was entitled to a contractual sum for the termination of his employment in an amount equal to his salary and benefits for the unexpired term of his employment contract.

Proceeding on a standard of correctness, Miller J.A. held that the motion judge - who deemed the early termination clause in the employment contract sufficiently ambiguous as to be unenforceable - erred in finding that the respondent was liable for damages according to the common law of reasonable notice, rather than damages for termination of a fixed term contract.

There is a presumption at common law that every employment contract includes an implied term that an employer must provide reasonable notice to an employee prior to the termination of employment. Without an agreement to the contrary, an employee is entitled to common law damages as a result of the breach of that implied term, and this presumption can only be rebutted if the contract clearly specifies some other period of notice.

Justice Miller found that the motion judge erred in holding that the impugned employment contract did not rebut that presumption by clearly specifying some other period of notice, either expressly or impliedly. An employment agreement with a fixed term automatically terminates at the end of the term with no obligation on the employer to provide notice or payment in lieu of notice. This ousts the implied term that reasonable notice must be given for termination without cause. Parties to a fixed term employment contract can specifically provide for early termination. If they do not specify a pre-determined notice period, however, an employee is entitled on early termination to the wages he or she would have received to the end of the term. Accordingly, the impugned employment contract, without the early termination clause, remained a fixed-term contract.

The respondent submitted that this interpretation would produce a windfall to Howard and was unfair to the employer. Miller J.A. disagreed, noting that it was Benson that drafted the employment contract. A sophisticated party, the respondent attempted to use a fixed-term contract to either eliminate its obligation entirely or to limit it to two weeks' notice on early termination. While Benson was entitled to do so, courts have consistently held that an employer must communicate clearly in the contract that this is what it is intending to do because of the significant consequences to an employee in such a situation.

Miller J.A. held that that the motion judge further erred in finding that an award of damages for early termination of the employment contract was subject to a duty to mitigate. There was no basis to depart from the rule in Bowes v. Goss Power Products Ltd., 2012 ONCA 425, that there is no duty to mitigate where the contract specifies the penalty for early termination. It does not matter if, as in this case, the penalty is the default wages and benefits for the remaining term of the contract or whether the penalty is specified expressly, as it was in Bowes. 

4. Miller, Canfield, Paddock and Stone, LLP v. BDO Dunwoody LLP, 2016 ONCA 281 (Laskin, Hourigan and Brown JJ.A.), April 21, 2016

The law firm Miller, Canfield, Paddock and Stone LLP appealed from the dismissal of its action against its client, BDO Dunwoody, for the payment of fees under the parties' contingency fee retainer agreement.

Under the retainer agreement, the appellant agreed to act on BDO's behalf "in any and all proceedings" the client intended to commence against certain defendants. The agreement also contained a provision entitling BDO to cancel the firm's services with or without cause, in which case the client would be "responsible to protect and pay the value of all services to date."

A dispute arose between the parties about whether the appellant should pay the cost of retaining outside counsel to appeal a decision in a proceeding BDO had commenced. BDO maintained that the firm's refusal to assume responsibility for appeal counsel's fees amounted to a repudiation of their retainer agreement. Accordingly, it wrote to the firm to advise that it had accepted the repudiation and directed the firm not to take any further steps on its behalf. The appellant rendered an invoice to BDO in the amount of $427,891.57 for the value of its services rendered to the date of termination of the retainer agreement.

BDO brought a summary judgment motion to dismiss the firm's action to collect its fees, and the firm brought a cross-motion for judgment in the amount of the invoice. The motion judge found in favour of BDO and dismissed the appellant's action for payment of its fees. She held that the firm had breached the retainer agreement and that the breach amounted to a repudiation of the agreement, but that BDO's acceptance of the repudiation did not amount to a cancellation of services by it.

In a brief endorsement, the Court of Appeal set aside the motion judge's dismissal of the appellant's action, granting judgment in favour of the firm in the amount of the invoice.

The Court found that, in assuming that the firm's refusal to pay outside counsel's fees amounted to a repudiation of the retainer agreement, the motion judge did not properly apply the law relating to repudiation. A repudiatory breach of a contract does not, in and of itself, bring an end to a contract; rather, it simply allows the innocent party the right of election to treat the contract at an end. The innocent party, in this case BDO, must make that election and communicate its decision to terminate the contract to the repudiating party.

In the Court's view, when it accepted the appellant's repudiation of the retainer agreement and advised it to take no further steps on its behalf, BDO cancelled the firm's services within the meaning of the retainer agreement's termination provision. In accordance with the terms of the retainer agreement, BDO then became responsible to pay the appellant the value of all services performed to date. 

5. Maurice v. Alles, 2016 ONCA 287 (Epstein, van Rensburg and Hourigan JJ.A.), April 21, 2016

In this appeal, from an order dismissing an oppression remedy claim on a motion for summary judgment, the Court of Appeal considered whether summary judgment is available on an application as opposed to an action and whether the two-year limitation period applies to claims of ongoing oppressive conduct.

The appellant, Robert Maurice, and the individual respondents were siblings, except for George Alles, who was the appellant's brother-in-law. From the late 1950s, their late father owned an interest in Television Antenna & Service Co., also known as Tasco, through his holding company, Kirby-Maurice Company Limited. Marlba Investments Limited owned the land on which Tasco operated, and was in turn owned equally by Kirby-Maurice and a second holding company owned by their father's business partner, Mike Sayer.

The late Mr. Maurice restructured Tasco in the late 1970s, giving equal interests in the company to each of his six children and Sayer's six children, and preserving voting control for his family by causing the issuance of fifty-four percent of Tasco's voting preferred shares to Kirby-Maurice.

In the early 1990s, litigation between the Maurice and Sayer families concerning Tasco and Marlba concluded with a settlement agreement which provided that the families would enter into unanimous shareholders agreements ("USAs") to govern the business and affairs of the two companies. The USAs were never executed but the parties, which included the appellant and his siblings, governed themselves according to the provisions of the settlement agreement, which were to be contained in the USAs. Those provisions included a prohibition on the transfer of shares in either Tasco or Marlba except between members of the same family, a shareholder's right to require the corporation to repurchase their common shares for cancellation at fair value and a right of first refusal with respect to the shares sought to be repurchased by the corporation.

The Maurice siblings, who were each twenty percent owners of Kirby-Maurice, later entered into a USA concerning their interests in that company. The Kirby-Maurice USA provided for a share sale procedure whereby a shareholder selling his shares in Tasco and Marlba was required to also sell, at a fair value to be determined by a valuator, his shares in Kirby-Maurice.

In May, 1996, the appellant exercised his right to sell his shares in Tasco and Marlba and, in accordance with the terms of the Kirby-Maurice USA, offered to sell his shares in Kirby-Maurice. The sale did not close until nearly eleven years later, in March, 2007. When it did, the appellant received a total of $2,275,000 for his shares: $1,966,700 for his shares in Tasco and $308,300 for his shares in Marlba, based on a July, 2005 valuation.

Not long after, negotiations between the respondents and a prospective purchaser ultimately led to Tasco and Marlba shareholders, including the respondent siblings and Kirby-Maurice, receiving a letter of intent from a third party with an interest in acquiring their shares.

The appellant, who was no longer a shareholder of Tasco or Marlba but who remained a shareholder and director of Kirby-Maurice, opposed the sale. At a July, 2008, Kirby-Maurice shareholders' meeting, he learned that his siblings had sold their shares in Tasco and Marlba to a numbered company whose owner was unknown, that Kirby-Maurice's preferred shares in Tasco were being sold for redemption at face value and that Kirby-Maurice's nominees to Tasco's and Marlba's boards of directors were resigning. The appellant argued that proceeding without the unanimous consent of the shareholders would breach the Kirby-Maurice USA and that his siblings should obtain a valuation before selling their shares in Tasco and Marlba. Despite his protestations, the appellant's siblings approved the sale of Kirby-Maurice's shares in Tasco and Marlba. Over the next several years, they ignored or refused the appellant's requests for a valuation of his shares in Kirby-Maurice and for information on how the company's preferred shares in Tasco were valued for the purposes of the sale.

In 2013, the appellant's siblings brought an application for the appointment of a valuator to value the issued and outstanding shares of Kirby-Maurice. The appellant commenced a cross-application against his siblings, George Alles and Kirby-Maurice, alleging breach of both the settlement agreement and the Kirby-Maurice USA, and seeking relief under the oppression remedy section of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16, arising out of the sale of Kirby-Maurice's shares in Tasco and Marlba.

In 2014, the appellant received a copy of the share purchase agreement for the sale of the respondents' and Kirby-Maurice's shares in Tasco and Marlba, as part of the respondents' disclosure. He learned that the purchase price increased over the course of a year's negotiations, with each sibling shareholder ultimately receiving $2,980,025 for his shares. The appellant also learned that the parties considered the issue of whether Kirby-Maurice's preferred shares in Tasco should be valued at more than face value.

With the cross-application ordered to be determined as a mini-trial before the application to appoint a valuator, the respondents brought a motion for summary judgment to dismiss the claims in the cross-application as being statute-barred. The appellant responded with a motion requiring the respondents to reimburse Kirby-Maurice for legal fees the corporation paid on their behalf in connection with the ongoing disputes from 2008 onward.

The motion judge found that the appellant became aware of the breach of the settlement agreement and the Kirby-Maurice USA at the July, 2008 shareholders' meeting, and accordingly held that the breach of contract claims were statute-barred. He found that the appellant was similarly aware of the facts giving rise to the oppression claims related to the Kirby-Maurice USA as of the same date, and deemed those claims statute-barred as well. Because the appellant only learned of his oppression claim for legal fees paid by Kirby-Maurice through information produced by the respondents in 2014, the motion judge held that this claim was not statute-barred. He noted, however, that the payment of legal fees by Kirby-Maurice would only be oppressive to the appellant if Kirby-Maurice did not have sufficient funds to purchase the appellant's shares at the price determined by the valuator. The motion judge granted the respondents' motion for the valuator's appointment.

Writing for the Court, Hourigan J.A. noted that a motion for summary judgment under Rule 20 is not available to adjudicate issues raised on an application under Rule 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, unless the application is converted into an action. However, since neither party objected to the use of the summary judgment procedure and both fully participated in the motion, any error in disposing of the limitation period issue by way of motion for summary judgment was merely a "procedural defect" that caused no prejudice to the parties.

Turning to the second issue, Justice Hourigan confirmed that an oppression remedy claim under the OBCA is subject to the general two-year limitation period set out in section 4 of the Limitations Act, 2002, S.O. 2002, c. 24.

Hourigan J.A. held that the respondents' act of selling their common shares in Tasco and Marlba would not qualify as oppressive conduct per se, but that potential oppressive conduct arose from the transaction in two ways. First, the respondents failed to provide the appellant with the requested information regarding the transaction. Second, the transaction itself may qualify as actionable oppression if it adversely impacted the value of the appellant's shareholding in Kirby-Maurice. The appellant discovered in July, 2008, that the respondents were selling their common shares in Tasco and Marlba, that the Tasco preferred shares held by Kirby-Maurice would be sold for redemption at face value and that the respondents were not disclosing the information regarding the valuation of their shares and any potential impact of the sale on the value of the appellant's shares in Kirby-Maurice. The appellant had an obligation to commence a claim based on the respondent's failure to produce the information regarding the share transaction within two years of his discovery that they would not produce it to him.

Justice Hourigan further held that the alleged oppressive conduct was not ongoing. The respondents' continuous refusal to produce the requested documents did not extend the limitation period beyond 2008, when the appellant discovered that they would not produce them. He cautioned that courts must not convert singular oppressive acts into ongoing oppression claims in an effort to extend limitation periods.

Nonetheless, Hourigan J.A. held that the motion judge erred in law in concluding that the appellant's oppression claim was out of time. He noted that another discrete potentially oppressive act occurred when the respondents commenced their application in May, 2013, for an order appointing a valuator to determine the fair value of the appellant's shares in Kirby-Maurice. The motion judge erred in failing to examine the respondents' conduct to determine whether there were any discrete acts of oppression within the two-year period prior to the commencement of the cross-application. Had he done so, he would have found that the respondents committed a new act of alleged oppressive conduct when they brought their application and attempted to rely upon their previous alleged oppressive conduct as part of the share valuation.

Hourigan J.A. noted that the effect of the motion judge's reasoning was that where a party is alleged to have acted in an oppressive manner but no oppression remedy application is commenced, that party is free to take additional oppressive steps in furtherance of, or based on, the initial oppressive conduct. That reasoning is contrary to the broad purposive interpretation that must be afforded the oppression remedy.

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