Court Of Appeal Summaries (December 2 – December 6, 2019) - Civil Law

Good afternoon.

Following are this week's summaries of the Court of Appeal for Ontario.

In Armstrong v. Royal Victoria Hospital, the plaintiff was seriously injured during a colectomy surgery. The trial judge found the doctor who completed the surgery negligently caused the plaintiff's injuries. The doctor appealed this liability finding, arguing that the trial judge erred by (i) establishing a standard of perfection; and (ii) conflating the causation and standard of care analysis.

A majority of the Court of Appeal agreed with the doctor. In clarifying the appropriate standard of care analysis, the majority held that it will generally be an error of law to use outcomes or goals as the standard of care. The trial judge measured the doctor's liability according to the goal a prudent surgeon would have when conducting the operation, rather than the means a prudent surgeon would use to attain that goal. This was an error of law.

The majority further clarified that as a general rule, a trial judge should determine whether the defendant has breached the standard of care before resolving issues of causation. Where the nature of the injury is relevant to "what happened", it is not an error to consider that injury in resolving whether the standard of care has been breached. However, what should be avoided is engaging such questions where they are not relevant to whether a breach has occurred. The majority allowed the doctor's appeal and dismissed the action. In dissent, Justice van Rensburg would have dismissed the appeal. I would not be surprised if this is not the last word on the matter.

Other topics covered this week included wrongful dismissal, the interpretation of a Will providing for the sale of a business, personal guarantees, bankruptcy, costs and security for costs.

Hope everyone is enjoying the weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Civil Decisions

1951584 Ontario Inc. (Maxium Financial Services Inc.) v. Altavision Plus Inc. , 2019 ONCA 943

Keywords: Contracts, Interpretation, Guarantees, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Bauer v Bank of Montreal, [1980] 2 SCR 102

MacLeod v Marshall, 2019 ONCA 955

Keywords: Torts, Assault and Battery, Civil Procedure, Costs, Substantial Indemnity, Interest of Justice, Rules of Civil Procedure, R.R.O. 1990, Reg 194, s. 57, Victims' Bill of Rights, 1995, S.O. 1995, c. 6., s. 4(6)

1732427 Ontario Inc. v. 1787930 Ontario Inc., 2019 ONCA 947

Keywords: Bankruptcy and Insolvency, Proposals, Automatic Stay, Creditor's Remedies, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 69(1)(a)

Loran v. Weissman , 2019 ONCA 962

Keywords: Wills and Estates, Interpretation, Sale of Assets, Advice and Directions

Armstrong v. Royal Victoria Hospital, 2019 ONCA 963

Keywords: Torts, Negligence, MedMal, Standard of Care, Causation, "But For" Test, Expert Opinion Evidence, Paur (Committee of) v. Providence Health Care, 2017 BCCA 161, 96 B.C.L.R. (5th) 320, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, St-Jean v. Mercier, 2002 SCC 15, Carlsen v. Southerland, 2006 BCCA 214, Snell v. Farrell, [1990] 2 S.C.R. 311, Bafaro v. Dowd, 2010 ONCA 188, Chasczewski Estate v. 528089 Ontario Inc. (Whitby Ambulance Service), 2012 ONCA 97, McArdle Estate v. Cox, 2003 ABCA 106, Meringolo (Committee of) v. Oshawa General Hospital (1991), 46 O.A.C. 260 (C.A.)

C. v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Summary Judgment, Employment Standards Act, 2000, S.O. 2000, c. 41, ss. 5, 13, and 60, Rules of Civil Procedure, Rule 20.01, Hryniak v. Mauldin, 2014 SCC 7, Red Deer College v. Michaels, [1976] 2 S.C.R. 324, McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Health Genetic Center Corp. v. New Scientist Magazine , 2019 ONCA 968

Keywords: Civil Procedure, Appeals, Security for Costs, Torts, Defamation, Courts of Justice Act, RSO 1990, c C43, s 7(5), Rules of Civil Procedure, Rules 56.01 (1)(f), 61.06, Libel and Slander Act, RSO 1990, c L12, s 12, Yaiguaje v Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v Flesch, 2010 ONCA 633

Short Civil Decisions

King v. King, 2019 ONCA 950

Keywords: Family Law, Spousal Support

Niras v. Doe, 2019 ONCA 949

Keywords: Civil Procedure, Limitation Periods, Discoverability, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Davis v East Side Marios Barrie, 2018 ONCA 410

Syrnyk v. Syrnyk, 2019 ONCA 948

Keywords: Consent Dismissal

Carey-Patel v. Carey, 2019 ONCA 960

Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney

The Floor Show Ltd. v. Man-Shield (NWO) Construction Inc., 2019 ONCA 954

Keywords: Civil Procedure, Partial Summary Judgment

Narvaez v. Muzlera, 2019 ONCA 959

Keywords: Contracts, Real Property, Misrepresentation, Civil Procedure, Default Judgments

Posner v. Weir Foulds LLP, 2019 ONCA 966

Keywords: Wills and Estates, Civil Procedure, Summary Judgment, Settlements

Public Guardian and Trustee v. Kennedy, 2019 ONCA 956

Keywords: Wills and Estates, Substitute Decisions, Public Guardian and Trustee, Fresh Evidence, Substitute Decisions Act, 1992, S.O., c. 30, s. 18(2), Palmer v The Queen, [1910] 1 S.C.R. 759

Mikhailova v. Skylark Holdings Limited, 2019 ONCA 958

Keywords: Civil Procedure, Default Judgements, Intact Insurance Company v Kisel, 2015 ONCA 205

Criminal Decisions

R. v. L.M., 2019 ONCA 945

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching, Assault, Evidence, Admissibility, Confessions, Criminal Code, ss. 271(1), 151, 152 and 266, R. v. W.(D.), [1991] 1 SCR 742, R. v. Trachy, 2019 ONCA 622

R. v. Y., 2019 ONCA 942

Keywords: Criminal Law, Drug Trafficking, Organized Crime, Evidence, Admissibility, Wiretaps, Sentencing, Criminal Code, ss 185, 186, and 487.01, Canadian Charter of Rights and Freedoms, s. 8, 11(b) and 24(2), R v Brewster, 2016 ONSC 8038

R. v. U.A., 2019 ONCA 946

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. Aird, 2013 ONCA 447, R. v. R.W., [1992] 2 S.C.R. 122, R. v. Duncan, 2016 ONCA 754, R. v. Lacasse, 2015 SCC, 64 Criminal Code, s. 719(3.1)

R. v. C., 2019 ONCA 953

Keywords: Criminal Law, Arrange a Sexual Offence Against Child, Breach of Probation, Sentencing, Criminal Code, ss. 172.2, 161, Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, R. v. Brar, 2016 ONCA 724

R. v. M., 2019 ONCA 952

Keywords: Criminal Law, First Degree Murder, Attempted Murder Using Firearm, Jury Instructions, Vetrovec Warning, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15, R. v. Hall, 2010 ONCA 724

R. v. R.D., 2019 ONCA 951

Keywords: Criminal Law, Unlawful Confinement, Sexual Assault Causing Bodily Harm, Choking with Intent, Sentencing, R. v. Corbett, [1988] 1 S.C.R. 670

Ontario Review Board Decisions

W. (Re), 2019 ONCA 958

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Criminal Code, ss. 672.67(1), 672.68(2), 672.69(2), 672.69(3), 672.71

CIVIL DECISIONS

1951584 Ontario Inc. (Maxium Financial Services Inc.) v. Altavision Plus Inc., 2019 ONCA 943

[van Rensburg, Paciocco, and Thorburn JJ.A.]

Counsel:

B Illion and D Ngai, for the appellants

L Hone, for the respondent

Keywords: Contracts, Interpretation, Guarantees, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Bauer v Bank of Montreal, [1980] 2 SCR 102

facts:

This is an appeal from a summary judgment enforcing personal guarantees against the appellants in relating to the obligations of Altavision Plus Inc. ("Altavision') under a 2009 equipment lease agreement that Altavision entered into with the respondent. The lease pertained to Altavision's medical aesthetics business in Fort McMurray, Alberta.

issues:

(1) Did the motion judge err by misinterpreting the Governing Law clause in the guarantees?

(2) Did the motion judge err by holding that the appellants could not defend themselves based on the respondent's failure to claim insurance coverage for its losses sustained by the appellant's default?

(3) Did the motion judge err by permitting the respondent to enforce the guarantees after assigning its receivables to another entity?

holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge properly applied the principles of contract interpretation to determine that the Governing Law clause referred to the province in which the respondent held the appellants' account, and not the other way around. The Court agreed that the motion judge's interpretation accords with "sound commercial principles and good business sense, avoiding a commercially absurd result", since a financial services company would not want to agree "to an ever-changing governing law, and 'irrevocably submit to the exclusive jurisdiction' of undetermined courts" if the appellants chose to move their account from jurisdiction to jurisdiction. Any "ambiguity" that may exist is with the factual determination of where that place is. The motion judge considered the evidence and determined the place to be Ontario and not Alberta, as the appellants desired. The Court found no overriding and palpable errors of fact or extricable errors of law arising from that finding.

(2) No. The insurance policy in question was obtained by the respondent to secure an unrelated contract with another party. It was not held to secure the performance of the debt that the appellants guaranteed. In actual fact, the obligation the appellants guaranteed required their corporation to insure the leased property, which it failed to do. Even if the insurance policy covered the value of losses the respondent is seeking to recover, the policy provides the appellants with no defence, as the so-called "Bauer Rule" (a creditor's duty to protect and preserve its security) has no application in this case.

(3) No. The motion judge correctly concluded that the respondent assigned only the income stream from its receivables. It retained the power to enforce those receivables. The motion judge held, in the alternative, that even if Sun Life had acquired the enforcement rights, the respondent would nonetheless have standing to do so as Sun Life's agent due to its contractual obligation to enforce the obligations.

Macleod v Marshall, 2019 ONCA 955

[Sharpe, van Rensburg and Thorburn JJ.A.]

Counsel:

Chris T. Blom and Susan Metzler, for the appellant The Basilian Fathers of Toronto

Paul Pape, Shantona Chaudhury, and Cristina Senese for the respondent R.M.

facts:

On appeal, the Appellant took the position that the jury instruction on how to assess damages for past income loss was wrong, the punitive damages award was excessive, and prejudgment interest ought not to have been awarded at the rate of five percent for non-pecuniary damages. The entitlement to and quantum of damages for loss of income and punitive damages were upheld, but the award of prejudgment interest was not.

The parties did not agree on the quantum to be awarded to the Respondent for fees or the fee scale of the costs award. The Appellant claimed fees should be awarded on a partial indemnity scale, while the Respondent claimed fees should be awarded on a substantial indemnity scale in the amount of $179,660.31, including disbursements and HST.

issues:

(1) Is a costs award of $179,660.31 in the interest of justice?

holding:

Respondent awarded substantial indemnity costs in the amount of $100,000, inclusive of all taxes and disbursements.

reasoning:

(1) No. The Court held that a costs award of $179,660.31 would not be in the interest of justice. The Court considered the factors set out in s. 57 of the Rules of Civil Procedure as well as s.4(6) of the Victims' Bill of Rights, 1995, S.O. 1995, c. 6 (the "Act").

The court noted the importance of the issues on appeal. This was one of the first cases in Ontario to instruct a jury on the manner in which to assess a claim for loss of income in a case involving a historical sexual assault. The court found it important to note that the fees sought by the Respondent on a less than one day appeal addressing three issues were disproportionate to the amount granted at trial, which lasted thirteen days, covered five issues, and involved twelve witnesses.

In view of the Act and the presumption that substantial indemnity costs are to be awarded unless to do so would be contrary to the interest of justice, the Court awarded substantial indemnity costs in the amount of $100,000, inclusive of all taxes and disbursements to the Respondent.

1732427 Ontario Inc. v. 1787930 Ontario Inc., 2019 ONCA 947

[Rouleau, Roberts and Harvison Young JJ.A.]

Counsel:

Sherry Kettle, for the appellant, Transit Petroleum Inc.

Paul Neil Feldman and Oscar Strawczynski, for the respondent, 1787930 Ontario Inc.

Keywords: Bankruptcy and Insolvency, Proposals, Automatic Stay, Creditor's Remedies, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 69(1)(a)

facts:

The appellant appeals from the motion judge's order requiring it to pay to the respondent the sum of $35,299.75, plus pre-judgment interest, and costs in the sum of $31,767.52 with respect to a pre-authorized debit payment ("PAD") that was made after the respondent filed a notice of intention to file a proposal in bankruptcy. The motion judge found that the PAD represented a prohibited "remedy against the insolvent person or the insolvent person's property", contrary to s. 69(1)(a) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.

issues:

(1) Did the motion judge err in characterizing the payment as the prohibited exercise of a creditor's remedy?

holding:

Appeal allowed.

reasoning:

(1) Yes. The motion judge erred by failing to consider whether the parties had entered into a legitimate agreement to pay past debts in order to secure the future supply of fuel. As a result, the matter should be remitted to him for a new hearing.

Loran v. Weissman, 2019 ONCA 962

[Watt, Hourigan, and Trotter JJA]

Counsel:

S Shpiegelman, for the appellant

M Spence, for the respondent

Keywords: Wills and Estates, Interpretation, Sale of Assets, Advice and Directions

facts:

This appeal arises out of a dispute regarding a provision in the Will of the late EJM. Master Auto Supply Co. Limited ("Master Auto") was owned by EJM and the respondent was given the option to purchase Master Auto for the lesser of $1.75 million or "the price determined by multiplying the earnings of Master Auto (averaged over the last three fiscal periods) by a factor of 5.5". The Will provided that the purchase price be delivered by way of a promissory note, with interest payable at 5% per annum. A gross annual payment to the Estate of not less than $180,000, to be made in monthly payments, was required. The promissory note was to be secured by a general security agreement against Master Auto's assets as well as the registration of a collateral mortgage against the respondent's residence.

The respondent attempted to exercise his option to purchase Master Auto. However, he was unable to reach an agreement with the Estate. The parties appeared before the application judge for directions.

In reasons dated January 4, 2019, the application judge gave directions regarding the sale of Master Auto. He found that the purchase price shall be $529,611, being $716,921 calculated in accordance with the formula in the Will, less $187,310, representing payments improperly made out of the company to the Estate after EJM's death. Further, he ruled that the respondent was not obligated to provide a collateral mortgage.

The Estate appealed.

issues:

1. Did the application judge err in treating the respondent as a beneficiary instead of a favoured purchaser?

2. Did the application judge err in dispensing with the requirement of a collateral mortgage?

3. Did the application judge err in accepting the respondent's evidence regarding the amount to be credited for EJM's salary for the purposes of calculating earnings?

4. Did the application judge err in deducting from the purchase price monies paid out of the company to the Estate for support payments to EJM's common-law spouse?

holding:

Appeal dismissed.

reasoning:

1. No. There is nothing in the application judge's reasons wherein he explicitly or implicitly treated the respondent as a beneficiary. The provision in the Will regarding the sale of Master Auto was not detailed. It fell to the application judge to give directions that furthered the testator's intention. In so doing, he treated the respondent as a potential purchaser only, and not as a beneficiary who had an absolute right to purchase the company.

2. No. Given that the mortgage requirement in the Will was so vague that it provided no security to the Estate, the application judge did not err in dispensing with this requirement. His finding was made as part of his discretion to provide directions regarding a commercially reasonable transaction, and it was owed deference.

3. No. As the application judge noted, the appellant's report does not explain its assessment of the salary figure. The application judge decision to prefer the position of the respondent's valuator over the appellant's valuator was entitled to deference.

4. No. The application judge drew a distinction between dividends and gratuitous payments from the company's cash reserves. While a dividend could have been declared, and the support payments could have been paid from the dividend, that is not what happened. The distinction drawn by the application judge was within his discretion, and there was no basis to interfere with the exercise of that discretion.

Armstrong v. Royal Victoria Hospital, 2019 ONCA 963

[Juriansz, van Rensburg and Paciocco JJ.A.]

Counsel:

Ronald G. Slaght, Q.C. and Sean Lewis, for the appellant Dr. Colin Ward

Ryan Breedon and Jan Marin, for the respondent Karen Armstrong

facts:

In February 2010, Dr. W performed a colectomy using laparoscopic surgery on KA. The surgery appeared to go uneventfully, with no sign that KA had been injured. However, KA began to develop increasingly more concerning post-operative problems. Eventually it was revealed that KA's left ureter was blocked. The blockage proved to be so significant that her left kidney was damaged and had to be surgically removed in October 2010.

KA sued Dr. W. The central negligence theory pursued against Dr. W was that he caused adhesions or scar tissue that blocked her left ureter by improperly using a cauterizing device, known as a LigaSure. KA contended at trial that Dr. W was negligent in that he either touched her left ureter with the LigaSure or brought the LigaSure too close to the ureter causing a thermal injury or heat damage. When the injury healed, the adhesions and scarring caused the blockage.

At trial, Dr. W admitted that KA sustained damages in the amount of $1,300,000. However, he did not admit negligence. He denied that he breached the standard of care expected of him as a surgeon, or that the damage KA sustained was caused in fact and in law by any such breach. The trial judge found that Dr. W breached the standard of care, and that this breach caused KA's ureter injury in law and fact. With respect to causation, the trial judge found that Dr. W caused KA's injury by coming within "one or two" millimetres of her ureter "causing damage leading to scar tissue and the eventual ureter blockage." This caused the loss of KA's kidney.

issues:

(1) Did the trial judge err by imposing an improper standard of care?

(2) Did the trial judge err in his standard of care analysis by conflating the standard of care and causation analysis?

(3) Did the trial judge commit a palpable and overriding error in giving weight to Dr. B's testimony?

(4) Did the trial judge err by finding that Dr. W caused KA's injuries?

holding:

Appeal allowed.

reasoning:

(1) Yes, the trial judge imposed an improper standard of care when measuring Dr. W's liability. The trial judge measured Dr. W's liability according to the goal a prudent surgeon would have when conducting the operation, rather than the means a prudent surgeon would use to attain that goal.

The controversial component of the standard of care that the trial judge imposed was his finding that a normal, prudent surgeon would avoid direct contact or close proximity (within two millimetres) between the ureter and the LigaSure. Where the goal used to define the standard of care is, in essence, avoiding the injury, the standard being imposed is strict or absolute liability since liability follows with every injury. This is not a proper measure of liability in a negligence case. Stating the standard of care in this way also invites circular reasoning and collapses the causation inquiry: Did the failure to meet the standard of care cause the injury? It did, because causing the injury is a failure to meet the standard of care. Therefore, it is generally an error of law to use outcomes or goals as the standard of care.

Negligence standards of care are to be measured by the behaviour that a relevant prudent person would undertake, rather than the results that prudent person would seek to attain or avoid. The trial judge measured Dr. W's negligence by inquiring whether Dr. W succeeded in not coming within two millimetres of KA's ureter with the LigaSure, instead of asking whether Dr. W took the steps that a reasonably prudent surgeon would take. In doing so, the trial judge used a goal or result in defining the standard of care, without finding that the goal or desired result could only have been missed by negligent acts or omissions.

A trial judge who is prepared to proceed on the basis that only negligence could cause the relevant injury is obliged to consider and rule out non-negligent causes. Only if this is done, can the trial judge properly use success as the standard of care. A plaintiff whose liability theory is that only negligence could have caused the injury in question is obliged to demonstrate that this is so, and the trial judge is required to accept this before finding liability. That did not occur in this case. The trial judge therefore erred in law in defining the standard of care. Having found that Dr. W took the steps that a prudent surgeon would take during this surgical procedure, the trial judge should have found that Dr. W did not breach the requisite standard of care.

(2) Yes. The trial judge addressed both standard of care and causation issues together in a continuous discussion. As a general rule, a trial judge should determine whether the defendant has breached the standard of care before resolving issues of causation.

The causation issue is moot if there has been no breach of the standard of care, and the causation issue depends upon identifying the breach, since the material question is whether "the defendant's particular substandard act or omission ... caused the harm": Chasczewski Estate v. 528089 Ontario Inc. (Whitby Ambulance Service), 2012 ONCA 97.

In some cases, it may be necessary to determine what happened to assess whether a defendant has breached the requisite standard of care. Where this is so, the injury may be relevant circumstantial evidence of what happened. Where the nature of the injury is relevant to "what happened", it is not an error to consider that injury in resolving whether the standard of care has been breached. What should be avoided is engaging such questions where they are not relevant to whether a breach has occurred. Moreover, even where the nature of the injury is relevant to whether the standard of care was breached, formal "but for" determinations should not be made until the act or omission falling short of the standard of care has been identified.

In this case, given the trial judge's misconception of the standard of care, he had to resolve "what happened", specifically, whether the LigaSure was deployed within two millimetres of the ureter. The thermal injury showed that it was, since on the evidence the trial judge accepted, the LigaSure had to be brought within that range to cause the thermal injury KA sustained. On the trial judge's standard of care theory, it would therefore not be improper for a trial judge to consider the injury or its relationship to what happened, before resolving whether the standard of care had been violated. If the standard of care the trial judge applied had been correct, it would not have been an independent error to analyse the case as he did.

However, had the trial judge properly conceived of the standard of care, it would not have been necessary for him to have conflated causation and standard of care. His doing so was in error, but this error is inextricably linked to the first and added nothing to the outcome of the appeal.

(3) and (4) It was not necessary for the Court to address these issues 3.

In the result, the trial judgment was set aside, and the action against Dr. W was dismissed.

dissent:

[van Rensburg J.A.]

(1) No. The trial judge did not err in defining and applying the standard of care. The trial judge did not apply a standard of perfection, nor did he adopt a results-oriented approach. His conclusion that a reasonably competent surgeon would have stayed two millimetres away from the ureter is fully supported by the evidence. It is not a statement of result or a "goal", but an essential step that was not taken in this case.

(2) No. The trial judge did not conflate standard of care and causation, or reason backwards from causation to conclude that Dr. W must have been negligent simply because he considered evidence as to the mechanism of the injury in his analysis of the breach of standard of care. In some cases it will be necessary to determine "what happened" before analyzing whether there has been a breach of the standard of care. The trial judge's conclusion about the cause of the damage to KA's ureter, was available and fully supported by the evidence.

(3) No. The trial judge did not err in relying on the evidence of Dr. B. There was nothing that would suggest that the trial judge in this case made a palpable and overriding error in accepting that evidence as part of his overall determination of the issue of standard of care.

(4) No. There was no error in the trial judge's causation analysis. Without question, there was evidence to support the trial judge's findings. The trial judge's reasons review and analyze the specific opinions of the expert witnesses on this issue, and then explain why he accepted Dr. K's opinion.

Justice van Rensburg would have dismissed the appeal.

C. v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965

[Feldman, Fairburn and Jama JJ.A.]

Counsel:

Ian R. Dick, for the appellant

Christopher Perri and Genevieve Cantin, for the respondent

facts:

The respondent C worked for the appellant in various positions from 1994 until she was dismissed without cause in 2017. She brought an action seeking damages for wrongful dismissal. She also sought to be reimbursed for amounts that she said had been improperly deducted from her wages while she was still employed. The respondent brought a summary judgment motion. At the motion, the motion judge ruled that the respondent acted in the capacity of a dependent contractor between 1994 to 2004, after which time she became the appellant's employee. The motion judge found that the termination clause in the employment agreement was void because it attempted to contract out of the minimum standards provided for under s. 5 of the Employment Standards Act, 2000, S.O. 2000, c. 41 ("ESA"). He granted summary judgment in favour of the respondent and awarded her pay in lieu of notice and other amounts for loss of benefits and a cellphone allowance. The motion judge also held that the appellant had made unlawful deductions from the respondent's wages beginning in 2016, contrary to s. 13 of the ESA, and awarded her compensation.

issues:

1. Did the trial judge err in finding that the case was appropriate for summary judgment?

2. Did the motion judge err by finding that the respondent was a dependent contractor between 1994 and 2004?

3. Did the motion judge err by finding that the termination clause was unenforceable?

4. Did the motion judge err in calculating the damages for wrongful dismissal?

5. Did the motion judge err in finding that the appellant had made wrongful deductions from the respondent's wages, contrary to s. 13 of the ESA?

6. Did the motion judge err in awarding the respondent damages to compensate for the loss of her cell phone allowance?

holding:

Appeal dismissed.

reasoning:

1. No. In determining that this was an appropriate matter for summary judgment, the motion judge specifically referred to and applied Hryniak v. Mauldin, 2014 SCC 7. He concluded that there was no genuine issue requiring a trial and that this case was appropriate for summary judgment. The Court saw no error in that determination. There were only two factual issues in dispute and they turned largely on non-disputed facts. The motion judge turned his mind to the question of credibility and found that there were no significant issues of credibility to be determined, as few facts were even in dispute, cross-examinations had been conducted with respect to all of the factual issues, and it appeared that the parties had done their best to put forward all records and documents. A trial would not have improved the factual record on two other points raised by the appellant who had the burden to prove them (Red Deer College v. Michaels, [1976] 2 S.C.R. 324).

2. No. The court saw no issue with the motion judge's approach to the appellant's argument that the motion judge failed to focus on whether the respondent was economically dependent on the appellant. The motion judge adverted to the correct legal test for determining dependent contractor status (McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916).

3. No. The standard of review on a matter of contractual interpretation is that of palpable and overriding error (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53). The impugned clause purported to contract out of two things: (a) short-term and long-term disability benefits during the notice period; and (b) other benefits absent the "consent of the Company's insurers." The clause allowed the employer to exclude the long and short-term disability benefits along with other benefits unless the insurer consented to giving effect to those benefits, and was thus a breach of s. 60(1) of the ESA, and unenforceable (Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158).

4. No. The court chose not to interfere with the conclusion of the motion judge to use the typical calculation for determining the quantum of loss of benefits. There was no evidence to support the claim that the amount of damages in lieu of benefits should be reduced. The amount of notice was squarely within a reasonable range. If an employer wishes to contract out of the common law reasonable notice period, the contract must clearly specify another period of notice (Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986).

5. No. In 2016, the appellant enacted a cost-saving measure and forced all employees to take two weeks of unpaid vacation during a prescribed period. Beginning at the start of this period, the appellant held back vacation pay unilaterally without amendment to the employment contract. Section 13(1) of the ESA prohibits employers from making deductions unless authorized and the court saw no error in the motion judge's conclusion that s. 13(1) of the ESA was breached.

6. No. The point of a damages award for wrongful dismissal is to compensate for "all losses arising from the employer's breach of contract in failing to give proper notice", and to "place the employee in the same financial position he or she would have been in had such notice been given" (Paquette v. TeraGo Networks Inc., 2016 ONCA 618). It was open to the judge to award damages to cover the loss of her cell phone allowance.

Health Genetic Center Corp. v New Scientist Magazine, 2019 ONCA 968

[van Rensburg, Paciocco, and Thorburn JJ.A.]

Counsel:

S Barton, for the respondents / moving parties

K Zvulony, for the appellants, respondents to the motion

facts:

The moving parties, respondents to a pending appeal, moved under s 7(5) of the Courts of Justice Act to set aside or vary the order of Brown JA dismissing their motion under Rule 61.06 of the Rules of Civil Procedure for security for costs.

issues:

1. Did the motion judge err by not considering whether the appellants would have sufficient assets to pay trial costs as well as appeal costs?

2. Did the motion judge err in not awarding security for costs under the combination of Rules 61.06(1)(b), 56.01(1)(f), and s 12 of the Libel and Slander Act?

3. Did the motion judge err in not awarding security for costs under Rule 61.06(1)(c) on the basis that there was no "other good reason"?

holding:

Appeal dismissed.

reasoning:

1. No. The motion judge considered the record and concluded that the information that was provided demonstrated that the appellants had sufficient assets in Ontario to pay the costs of the appeal. Under Rulw 61.06(1)(a), the test in respect of sufficiency of assets is tied only to the appellant's ability to pay costs of the appeal. Even if the moving parties' interpretation of Rule 61.06(1)(b) and Rule 56.01(1)(d) were accepted, or if there were some other reason to consider the sufficiency of the corporate appellant's assets to satisfy the costs order in the court below, the overriding consideration is whether an order for security for costs would be just, a question that needs to be considered holistically, taking into consideration the circumstances of the particular case: Yaiguaje at para 25. In the Court's view, the order would not be just in the circumstances.

2. No. The Court agreed with the motion judge that s 12 of the Libel and Slander Act does not provide an automatic right to obtain security for costs of a trial which has already taken place, where such security would not otherwise be awarded.

3. No. The Court agreed with the motion judge that there was no "other good reason" to order security for costs under Rule 61.06(1)(c). The "other good reason" must be related to the purpose for ordering security: that the respondent is entitled to a measure of protection for costs. The "other good reason" should be fairly compelling, as resort is to this provision when the respondent has been unable to obtain security under the other two categories, and security for costs under Rule 61.06(1)(c) should not be made routinely: Combined Air Mechanical Services Inc. v Flesch at para 8.

SHORT CIVIL DECISIONS

King v. King, 2019 ONCA 950

[Lauwers, Paciocco and Fairburn JJ.A.]

Counsel:

Jordan McKie and Jacob Damstra, for the appellant

L. R. K., acting in person

Keywords: Family Law, Spousal Support

Niras v. Doe, 2019 ONCA 948

[Lauwers, Paciocco and Fairburn JJ.A.]

Counsel:

G. N., acting in person

Philip E. Ghosh, for the respondent Club Pro Adult Entertainment Inc.

Keywords: Civil Procedure, Limitation Periods, Discoverability, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Davis v East Side Marios Barrie, 2018 ONCA 410

Syrnyk v. Syrnyk, 2019 ONCA 948

[Watt, Hourigan and Trotter JJ.A.]

Counsel:

Edwin G. Upenieks, for the appellant

Chris Tonks, for the respondent

Keywords: Consent Dismissal

Carey-Patel v. Carey, 2019 ONCA 960

[Watt, Hourigan and Trotter JJ.A.]

Counsel:

Kenneth Wise, for the appellants

Matthew Harris and Yonatan Lipetz, for Douglas and Arthur Carey Richard Watson, for Lydia Carey Patel, Robert Patel and David Aello

Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney

The Floor Show Ltd. v Man-Shield (NWO) Constructions Inc., 2019 ONCA 954

[Simmons, Pardu and Nordheimer JJ.A.]

Counsel:

Melanie Mayhew-Hammond, for the moving party (M50918 & M50916) and the responding party (M50742 & M50743)

Amanda Verhaeghe, for the moving party (M50742 & M50743) and the responding party (M50918 & M50916)

Keywords: Civil Procedure, Partial Summary Judgment

Narvaez v. Muzlera, 2019 ONCA 959

[Watt, Hourigan and Trotter JJ.A.]

Counsel:

Mauro Marchioni, for the appellant

David Fenig and Frank Loreto, for the respondents

Keywords: Contracts, Real Property, Misrepresentation, Civil Procedure, Default Judgments

Posner v. Weir Foulds LLP, 2019 ONCA 956

[Juriansz, Brown and Miller JJ.A.]

Counsel:

David Marcovitch, for the appellants

Michael R. Kestenberg, for the respondents

Keywords: Wills and Estates, Civil Procedure, Summary Judgment, Settlements

Public Guardian and Trustee v. Kennedy, 2019 ONCA 956

[Lauwers, Paciocco and Fairburn JJ.A.]

Counsel:

Daniel Joseph Kennedy, in person

Lynn Donnelly, for the Public Guardian and Trustee

Keywords: Wills and Estates, Substitute Decisions, Public Guardian and Trustee, Fresh Evidence, Substitute Decisions Act, 1992, S.O., c. 30, s. 18(2), Palmer v The Queen, [1910] 1 S.C.R. 759

Mikhailova v. Skylark Holdings Limited, 2019 ONCA 958

[Watt, Hourigan and Trotter JJ.A.]

Counsel:

Doug LaFramboise, for the appellants

Scott Turton, for the respondent

Keywords: Civil Procedure, Default Judgements, Intact Insurance Company v Kisel, 2015 ONCA 205

CRIMINAL DECISIONS

R. v. L.M., 2019 ONCA 945

[Benotto, Brown and Paciocco JJ.A.]

Counsel:

Andrew Cappell, for the appellant

Maija Martin and David M. Reeve, for the respondent

R. v. Y., 2019 ONCA 942

[Tulloch, van Rensburg and Harvison Young JJ.A.]

Counsel:

R. Craig Bottomley and Sherif M. Foda for the appellant L. Y.

Andrew Burgess for the appellant D. Q. T.

James Lockyer and Eva Taché-Green for the appellant K. Y. M.

Anthony Moustacalis and Christen Cole for the appellant C. S. R. S.

Jennifer Epstein for the respondent

R. U.A., 2019 ONCA 946

[Strathy C.J.O., Harvison Young and Jamal JJ.A.]

Counsel:

Nicholas St-Pierre, for the appellant

E. Nicole Rivers, for the respondent

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. Aird, 2013 ONCA 447, R. v. R.W., [1992] 2 S.C.R. 122, R. v. Duncan, 2016 ONCA 754, R. v. Lacasse, 2015 SCC, 64 Criminal Code, s. 719(3.1)

R. v. C., 2019 ONCA 953

[Juriansz, Pepall and Lauwers JJ.A.]

Counsel:

Robert Goddard, for the appellant

Caitlin Sharawy, for the respondent

R. v. M., 2019 ONCA 952

[Simmons, Huscroft and Nordheimer JJ.A.]

Counsel:

James Lockyer and Lance Beechener, for the appellant

Craig Harper and Andrew Hotke, for the respondent

R. v. R.D., 2019 ONCA 951

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

Counsel:

R. D., in person

Lisa Jørgensen, counsel for the appellant on the sentence appeal and duty counsel on the conviction appeal

Deborah Krick, for the respondent

Keywords: Criminal Law, Unlawful Confinement, Sexual Assault Causing Bodily Harm, Choking with Intent, Sentencing, R. v. Corbett, [1988] 1 S.C.R. 670

ONTARIO REVIEW BOARD DECISIONS

W. (Re), 2019 ONCA 957

[Watt, Miller and Fairburn JJ.A.]

Counsel:

Suzan E. Fraser, for the appellant

Amy Alyea, for the respondent, the Attorney General of Ontario

Janice E. Blackburn for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Criminal Code, ss. 672.67(1), 672.68(2), 672.69(2), 672.69(3), 672.71

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

Canada: Court Of Appeal Summaries (December 2 – December 6, 2019) Blaney's Appeals

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Short Civil Decisions

Criminal Decisions

Ontario Review Board Decisions

CIVIL DECISIONS

Counsel:

facts:

issues:

holding:

Reasoning:

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facts:

issues:

holding:

reasoning:

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facts:

issues:

holding:

reasoning:

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holding:

reasoning:

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facts:

issues:

holding:

reasoning:

dissent:

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facts:

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holding:

reasoning:

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facts:

issues:

holding:

reasoning:

SHORT CIVIL DECISIONS

Counsel:

Counsel:

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Counsel:

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Counsel:

CRIMINAL DECISIONS

Counsel:

Counsel:

Counsel:

Counsel:

Counsel:

Counsel:

ONTARIO REVIEW BOARD DECISIONS

Counsel:

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Canada: Court Of Appeal Summaries (December 2 – December 6, 2019)
Blaney's Appeals